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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Election Funding and Disclosures
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments to Election Funding and Disclosures Act
1981 No 78 relating to political donations and electoral
expenditure 3
Schedule 2 Amendments to Election Funding and Disclosures Act
1981 No 78 relating to election and other funding 23
Schedule 3 Miscellaneous amendments to Election Funding and
Disclosures Act 1981 No 78 45
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2010
New South Wales
Election Funding and Disclosures
Amendment Bill 2010
Act No , 2010
An Act to amend the Election Funding and Disclosures Act 1981 with respect to
election funding, expenditure and disclosures and other matters.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Election Funding and Disclosures Amendment Bill 2010
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Election Funding and Disclosures Amendment Act 2010.
2 Commencement
This Act commences on 1 January 2011.
Page 2
Election Funding and Disclosures Amendment Bill 2010
Amendments to Election Funding and Disclosures Act 1981 No 78 relating Schedule 1
to political donations and electoral expenditure
Schedule 1 Amendments to Election Funding and
Disclosures Act 1981 No 78 relating to
political donations and electoral
expenditure
[1] Section 1 Name of Act
Omit "Election Funding and Disclosures Act".
Insert instead "Election Funding, Expenditure and Disclosures Act".
[2] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
electoral communication expenditure--see section 87.
electoral expenditure--see section 87.
political donation--see section 85.
reportable political donation--see section 86.
third-party campaigner means an entity or other person (not
being a registered party, elected member, group or candidate)
who incurs electoral communication expenditure during a capped
expenditure period (as defined in Part 6) that exceeds $2,000 in
total.
[3] Section 83 Application
Insert "(other than Divisions 2A and 2B)" after "councils" in section 83 (b).
[4] Section 83, note
Insert at the end of the section:
Note. Political donations and electoral expenditure are required to be
disclosed in connection with both State and local government elections
and members but the cap on political donations, the cap on electoral
communication expenditure and public funding of election campaigns
only apply to State elections and members.
[5] Section 84 Definitions--general
Insert in alphabetical order in section 84 (1):
applicable cap on electoral expenditure--see Division 2B.
applicable cap on political donations--see Division 2A.
capped expenditure period--see section 95H.
financial year means a financial year ending 30 June.
Page 3
Election Funding and Disclosures Amendment Bill 2010
Schedule 1 Amendments to Election Funding and Disclosures Act 1981 No 78 relating
to political donations and electoral expenditure
[6] Section 84 (1)
Omit the definition of major political donor.
Insert instead:
major political donor means an entity or other person (not being
a party, elected member, group or candidate) who makes a
reportable political donation of or exceeding $1,000.
[7] Section 84 (7)
Insert after section 84 (6):
(7) For the purposes of this Part, an amount of electoral expenditure
by a candidate for election to the Assembly includes, if the
candidate is the endorsed candidate of a registered party, any
amount of electoral expenditure that is:
(a) incurred by that party for the benefit of the candidate or for
the benefit of the candidate and other candidates endorsed
by the party at the election (whether or not as an agent for
the candidate), and
(b) invoiced by that party to the candidate for payment
(whether or not the candidate has a legal liability to pay to
the party the amount invoiced).
[8] Section 85 Meaning of "political donation"
Insert after section 85 (3):
(3A) The following dispositions of property are taken to be a gift for
the purposes of this section:
(a) a disposition of property to a NSW branch of a party from
the federal branch of the party,
(b) a disposition of property to a NSW branch of a party from
another State or Territory branch of the party,
(c) a disposition of property from a party to another associated
party (whether associated because of common
membership, coalition arrangements or otherwise).
Note. Any such disposition will be a political donation that is required to
be disclosed and subject to the cap on political donations under this Part,
but will not be subject to the cap to the extent that it is paid into (or held
as the assets of) an account of a party that is used only for the purposes
of expenditure incurred for federal election campaigns or local
government election campaigns--see section 95B (2).
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Election Funding and Disclosures Amendment Bill 2010
Amendments to Election Funding and Disclosures Act 1981 No 78 relating Schedule 1
to political donations and electoral expenditure
(3B) Uncharged interest on a loan to an entity or other person is taken
to be a gift to the person for the purposes of this section.
Uncharged interest is the additional amount that would have been
payable by the person if:
(a) the loan had been made on terms requiring the payment of
interest at the generally prevailing interest rate for a loan
of that kind, and
(b) any interest payable had not been waived, and
(c) any interest payments were not capitalised.
[9] Section 85 (5)
Insert after section 85 (4):
(5) However, if any part of a gift referred to in subsection (4) (a) is
subsequently used to incur electoral expenditure, that part of the
gift becomes a political donation.
[10] Section 86 Meaning of "reportable political donation"
Omit section 86 (1). Insert instead:
(1) For the purposes of this Act, a reportable political donation is:
(a) in the case of disclosures under this Part by a party, elected
member, group, candidate or third-party campaigner--a
political donation of or exceeding $1,000 made to or for
the benefit of the party, elected member, group, candidate
or third-party campaigner, or
(b) in the case of disclosures under this Part by a major
political donor--a political donation of or exceeding
$1,000 made by the major political donor to or for the
benefit of a party, elected member, group, candidate or
third-party campaigner.
[11] Section 86 (2)
Insert ", third-party campaigner" after "candidate".
[12] Section 87
Omit the section. Insert instead:
87 Meaning of "electoral expenditure" and "electoral communication
expenditure"
(1) For the purposes of this Act, electoral expenditure is expenditure
for or in connection with promoting or opposing, directly or
indirectly, a party or the election of a candidate or candidates or
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Election Funding and Disclosures Amendment Bill 2010
Schedule 1 Amendments to Election Funding and Disclosures Act 1981 No 78 relating
to political donations and electoral expenditure
for the purpose of influencing, directly or indirectly, the voting at
an election.
(2) For the purposes of this Act, electoral communication
expenditure is electoral expenditure of any of the following
kinds:
(a) expenditure on advertisements in radio, television, the
Internet, cinemas, newspapers, billboards, posters,
brochures, how-to-vote cards and other election material,
(b) expenditure on the production and distribution of election
material,
(c) expenditure on the Internet, telecommunications,
stationery and postage,
(d) expenditure incurred in employing staff engaged in
election campaigns,
(e) expenditure incurred for office accommodation for any
such staff and candidates (other than for the campaign
headquarters of a party or for the electorate office of an
elected member),
(f) such other expenditure as may be prescribed by the
regulations as electoral communication expenditure,
but is not electoral expenditure of the following kinds:
(g) expenditure on travel and travel accommodation,
(h) expenditure on research associated with election
campaigns,
(i) expenditure incurred in raising funds for an election or in
auditing campaign accounts,
(j) such other expenditure as may be prescribed by the
regulations as not being electoral communication
expenditure.
(3) Electoral expenditure (and electoral communication expenditure)
does not include:
(a) expenditure incurred substantially in respect of an election
of members to a Parliament other than the NSW
Parliament, or
(b) expenditure on factual advertising of:
(i) meetings to be held for the purpose of selecting
persons for nomination as candidates for election, or
(ii) meetings for organisational purposes of parties,
branches of parties or conferences, committees or
other bodies of parties or branches of parties, or
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Election Funding and Disclosures Amendment Bill 2010
Amendments to Election Funding and Disclosures Act 1981 No 78 relating Schedule 1
to political donations and electoral expenditure
(iii) any other matter involving predominantly the
administration of parties or conferences,
committees or other bodies of parties or branches of
parties.
Note. Division 2B caps electoral communication expenditure during a
State election campaign (and Part 5 limits public funding for such
expenditure at State election campaigns to part of that capped amount).
Division 2 (section 93) requires disclosure of the above electoral
expenditure incurred at any time for State and local government
elections. Section 96N also requires the annual disclosure under this
Part by a party of donations and electoral expenditure to be
accompanied by an audited annual financial statement of the party.
[13] Section 88 Disclosures required to be made
Insert "or made" after "received" in section 88 (1).
[14] Section 88 Disclosures required to be made
Omit section 88 (2). Insert instead:
(1A) Third-party campaigners
Disclosure is required under this Part of:
(a) electoral communication expenditure incurred by a
third-party campaigner in a capped expenditure period
during the relevant disclosure period, and
(b) political donations received by the third-party campaigner
during the relevant disclosure period for the purposes of
incurring that expenditure.
(2) Major political donors
Disclosure is required under this Part of reportable political
donations made by a major political donor who has, during the
relevant disclosure period, made a reportable political donation
of or exceeding $1,000.
[15] Section 89 Relevant disclosure period
Omit "is each 6-month period ending on 30 June and on 31 December" from
section 89 (1).
Insert instead "is each 12-month period ending on 30 June".
[16] Section 90 Person responsible for making disclosures
Omit section 90 (d). Insert instead:
(d) in the case of a third-party campaigner--the official agent
of the third-party campaigner,
(e) in the case of a major political donor--the political donor.
Page 7
Election Funding and Disclosures Amendment Bill 2010
Schedule 1 Amendments to Election Funding and Disclosures Act 1981 No 78 relating
to political donations and electoral expenditure
[17] Section 91 When and how disclosures to be made
Omit from the note to section 91 (1) "before 26 February for the period ending
on 31 December in the previous year, and".
[18] Section 91 (5A)
Insert after section 91 (5):
(5A) Disclosures by a third-party campaigner who is also a major
political donor in a relevant disclosure period may be made in a
single declaration.
[19] Section 92 Political donations required to be disclosed
Omit "major political donor" from section 92 (2) (a).
Insert instead "third-party campaigner".
[20] Section 92 (2) (f)
Omit "the Australian Business Number of the entity".
Insert instead "the relevant business number of the entity referred to in section
96D".
[21] Section 92 (3) Small donations
Insert "third-party campaigners or" before "major political donors".
[22] Section 93 Electoral expenditure required to be disclosed
Omit section 93 (1). Insert instead:
(1) All electoral expenditure is required to be disclosed under this
Part (whether or not it is incurred during the capped expenditure
period for an election).
[23] Part 6, Divisions 2A and 2B
Insert after Division 2 of Part 6:
Division 2A Caps on political donations for State
elections
95AA Application to State elections only
(1) This Division does not apply to donations in relation to local
government elections and elected members of councils.
(2) Accordingly, a reference in this Division:
(a) to an election is a reference that relates to a State election,
and
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Amendments to Election Funding and Disclosures Act 1981 No 78 relating Schedule 1
to political donations and electoral expenditure
(b) to an elected member or to a candidate or other person is a
reference that relates to a member of Parliament or to a
candidate or other person in connection with a State
election.
95A Applicable cap on political donations
(1) General cap
The applicable cap on political donations is as follows:
(a) $5,000 for political donations to or for the benefit of a
registered party,
(b) $2,000 for political donations to or for the benefit of a
party that is not a registered party,
(c) $2,000 for political donations to or for the benefit of an
elected member,
(d) $5,000 for political donations to or for the benefit of a
group,
(e) $2,000 for political donations to or for the benefit of a
candidate,
(f) $2,000 for political donations to or for the benefit of a
third-party campaigner.
(2) Aggregation of donations during financial year
A political donation of or less than an amount specified in
subsection (1) made by an entity or other person is to be treated
as a donation that exceeds the applicable cap on political
donations if that and other separate political donations made by
that entity or other person to the same party, elected member,
group, candidate or third-party campaigner within the same
financial year would, if aggregated, exceed the applicable cap on
political donations referred to in subsection (1).
(3) Aggregation of donations to elected members, groups or
candidates of same party
A political donation of or less than an amount specified in
subsection (1) made by an entity or other person to an elected
member, group or candidate is to be treated as a donation that
exceeds the applicable cap on political donations if that and other
separate political donations made by that entity or person to
elected members, groups or candidates of the same party within
the same financial year would, if aggregated, exceed the
applicable cap on political donations referred to in subsection (1).
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Election Funding and Disclosures Amendment Bill 2010
Schedule 1 Amendments to Election Funding and Disclosures Act 1981 No 78 relating
to political donations and electoral expenditure
(4) Non-aggregation of contributions to candidate's own campaign
For the avoidance of doubt, a candidate's contribution to finance
his or her own election campaign is not a political donation and
is not included in the applicable cap on political donations to the
candidate.
Note. Political donations in relation to separately registered parties that
are in coalition or otherwise associated are not aggregated and,
accordingly, the applicable cap applies separately in relation to each
such registered party.
(5) Indexation of capped amounts
Each of the amounts referred to in subsection (1) is an adjustable
amount that is to be adjusted for inflation as provided by
Schedule 1.
(6) Meaning of candidates etc of same party
For the purposes of this section, elected members, groups and
candidates are of the same party if the same party endorsed the
elected members, members of the group or candidates at the last
election (including any subsequent by-election) or are to be
endorsed by the same party at the next election. If any such
person ceases to be a member of that party after being elected or
endorsed as a candidate, the person ceases to be of the same party
for the purposes of this section.
95B Prohibition on political donations that exceed applicable cap
(1) General prohibition
It is unlawful (subject to this section) for a person to accept a
political donation to a party, elected member, group, candidate or
third-party campaigner if the donation exceeds the applicable cap
on political donations.
(2) Exception--federal or local government campaign donations
It is not unlawful for a person to accept a political donation that
exceeds the applicable cap if the donation (or that part of the
donation that exceeds the applicable cap) is to be paid into (or
held as an asset of) an account kept exclusively for the purposes
of federal or local government election campaigns.
(3) A political donation of property (not being money) that is held as
an asset of an account kept for federal or local government
election campaigns ceases to be excluded by subsection (2) from
the prohibition under this section if the proceeds of the disposal
of the property are paid into any other account.
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(4) Exception for third-party campaigner
It is not unlawful for a person to accept a political donation to a
third-party campaigner that exceeds the applicable cap if the
donation (or that part of the donation that exceeds the applicable
cap) is not to be paid into (or held as an asset of) the campaign
account of the third-party campaigner under section 96AA.
(5) Defence--aggregration
If a political donation to a person exceeds the applicable cap
because of the aggregation of political donations made to other
persons, the acceptance of the donation is not unlawful if the
person did not know and could not reasonably have known of the
political donations made to the other persons.
(6) Donors required to disclose related corporation donors
It is unlawful for an individual to make a political donation on
behalf of a corporation that is related to another corporation
(referred to in section 84 (6)) that has made a political donation
to the same party, elected member, group, candidate or
third-party campaigner in the same financial year unless the
individual complies with the requirements of the regulations
relating to the disclosure to the person accepting the donation of
particulars of the other corporation and its political donations.
(7) Transitional--donations before 1 January 2011
In calculating whether a political donation made after
1 January 2011 exceeds the applicable donation cap, a political
donation made at any time after 30 June 2010 is to be taken into
account as a donation made during the 20102011 financial year.
95C Prohibition on donations to more than 3 third-party campaigners
(1) It is unlawful for a person to make or accept political donations
to more than 3 third-party campaigners in the same financial year.
(2) This section applies only to a political donation to a third-party
campaigner that is to be paid into (or held as an asset of) the
campaign account of the third-party campaigner under section
96AA.
(3) A political donation to a third-party campaigner in contravention
of this section is not unlawful if the person making or accepting
the donation did not know and could not reasonably have known
of the political donations to which this section applies made to the
other third-party campaigners.
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Election Funding and Disclosures Amendment Bill 2010
Schedule 1 Amendments to Election Funding and Disclosures Act 1981 No 78 relating
to political donations and electoral expenditure
95D Exemption from donation cap for party subscriptions and party
levies
(1) A party subscription paid to a party is to be disregarded for the
purposes of this Division, except so much of the amount of the
subscription as exceeds the relevant maximum subscription
under subsection (3).
(2) A party subscription is:
(a) an annual or other subscription paid to the party by a
member of the party, or
(b) an annual or other subscription paid to the party by an
entity or other person (including an industrial
organisation) for affiliation with the party.
(3) For the purposes of this section:
(a) the maximum subscription in respect of membership of a
party is $2,000, and
(b) the maximum subscription in respect of affiliation with a
party is:
(i) if the amount of the subscription is not calculated by
reference to the number of members of the
affiliate--$2,000, or
(ii) if the amount of the subscription is calculated by
reference to the number of members of the
affiliate--$2,000 multiplied by the number of those
members of the affiliate.
(4) A party levy paid to a party by an elected member endorsed by
the party is to be disregarded for the purposes of this Division.
Note. Bequests are not donations for the purposes of this Part (see
definition of gift in section 84) and accordingly are not subject to the
political donation cap.
Division 2B Caps on electoral communication
expenditure for State election campaigns
95E Application to State elections only
(1) This Division does not apply in relation to local government
elections.
(2) Accordingly, a reference in this Division:
(a) to an election is a reference to a State election, and
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(b) to a candidate or other person is a reference that relates to
a candidate or other person in connection with a State
election.
95F Applicable caps on electoral communication expenditure on State
election campaigns
(1) General
The applicable caps on electoral communication expenditure for
a State election campaign are as provided by this section, as
modified by section 95G.
(2) Parties with Assembly candidates in a general election
For a State general election, the applicable cap for a party that
endorses candidates for election to the Assembly is $100,000
multiplied by the number of electoral districts in which a
candidate is so endorsed.
(3) Subsection (2) does not apply to a party that endorses candidates
in a group for election to the Council and endorses candidates for
election to the Assembly in not more than 10 electoral districts.
Note. The total cap for a party that endorses candidates in all
93 electorates at a general election is $9.3 million.
(4) Other parties with Council candidates in a general election
For a State general election, the applicable cap for a party that
endorses candidates in a group for election to the Council, but
does not endorse any candidates for election to the Assembly or
does not endorse candidates in more than 10 electoral districts, is
$1,050,000.
(5) Independent groups of candidates in Council general elections
For a periodic Council election, the applicable cap for a group of
candidates who are not endorsed by any party is $1,050,000.
(6) Party candidates in Assembly general election
For a State general election, the applicable cap for a candidate
endorsed by a party for election to the Assembly is $100,000.
(7) Independent candidates in Assembly general election
For a State general election, the applicable cap for a candidate not
endorsed by any party for election to the Assembly is $150,000.
(8) Non-grouped candidates in Council general election
For a periodic Council election, the applicable cap for a candidate
who is not included in a group is $150,000.
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to political donations and electoral expenditure
(9) Candidates in Assembly by-election
For a by-election for the Assembly, the applicable cap for a
candidate (whether or not endorsed by a party) is $200,000.
(10) Third-party campaigners
For a State general election, the applicable cap for a third-party
campaigner is:
(a) $1,050,000 if the third-party campaigner was registered
under this Act before the commencement of the capped
expenditure period for the election, or
(b) $525,000 in any other case.
(11) For a by-election for the Assembly, the applicable cap for a
third-party campaigner is $20,000 for each by-election.
(12) Additional cap for individual Assembly seats
The applicable cap for parties and third-party campaigners is
subject to an additional cap (within the overall applicable cap) in
relation to State general elections, or by-elections in more than
one electorate, for electoral communication expenditure incurred
substantially for the purposes of the election in a particular
electorate, being:
(a) in the case of a party--$50,000 in respect of each such
electorate, or
(b) in the case of a third-party campaigner--$20,000 in
respect of each such electorate.
(13) For the purposes of subsection (12), electoral communication
expenditure is only incurred for the purposes of the election in a
particular electorate if the expenditure is for advertising or other
material that:
(a) explicitly mentions the name of a candidate in the election
in that electorate or the name of the electorate, and
(b) is communicated to electors in that electorate, and
(c) is not mainly communicated to electors outside that
electorate.
(14) Indexation of capped amounts
Each of the amounts referred to in this section is an adjustable
amount that is to be adjusted for inflation as provided by
Schedule 1.
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to political donations and electoral expenditure
95G Aggregation of applicable caps
(1) For the purposes of this section, registered parties are associated
if:
(a) they endorse the same candidate for a State election, or
(b) they endorse candidates included in the same group in a
periodic Council election, or
(c) they form a recognised coalition and endorse different
candidates for a State election or endorse candidates in
different groups in a periodic Council election.
(2) Aggregation of expenditure of associated parties
If 2 or more registered parties are associated:
(a) the amount of $100,000 of electoral communication
expenditure in respect of any electoral district in which
there are candidates endorsed by the associated parties is,
for the purpose of calculating the applicable cap on
electoral communication expenditure by those parties
under section 95F (2), to be shared by those parties (and is
not a separate amount for each of those parties), and
(b) the amount of $1,050,000 of electoral communication
expenditure in respect of any group of candidates endorsed
by those parties is, for the purpose of calculating the
applicable cap on electoral communication expenditure by
those parties under section 95F (4), to be shared by those
parties (and is not a separate amount for each of those
parties).
(3) Aggregation of expenditure of multiple endorsed candidates in
Assembly electorate
The amount of $100,000 of electoral communication expenditure
in respect of an election in an electoral district in which there are
2 or more candidates endorsed by the same party (or by
associated parties) is, for the purpose of calculating the
applicable cap on electoral communication expenditure by the
candidates under section 95F (6), to be shared by those
candidates (and is not a separate amount for each of those
candidates).
(4) Aggregation of expenditure of parties and endorsed Council
candidates
Electoral communication expenditure incurred by a party for a
State election campaign that is of or less than the amount
specified in section 95F for the party (as modified by subsection
(2) in the case of associated parties) is to be treated as expenditure
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to political donations and electoral expenditure
that exceeds the applicable cap if that expenditure and any other
electoral communication expenditure incurred by a candidate for
election to the Council who is endorsed by the party (or
associated party) exceed the applicable cap so specified for the
party.
(5) Aggregation of expenditure of endorsed candidates and parties
for Assembly by-elections
Electoral communication expenditure incurred by a candidate
endorsed by a party for an Assembly by-election campaign that
is of or less than the amount specified in section 95F for the
candidate is to be treated as expenditure that exceeds the
applicable cap if that expenditure and any other electoral
communication expenditure incurred by the party (or by any
associated party) for that by-election exceed the applicable cap so
specified for the candidate.
95H Capped expenditure period
The applicable cap on electoral communication expenditure for a
State election applies to electoral communication expenditure
during each of the following periods (the capped expenditure
period):
(a) in the case of the first general election to be held in 2011--
the period from and including 1 January 2011 to the end of
polling day for the election,
(b) in the case of a subsequent general election to be held
following the expiry of the Legislative Assembly by the
effluxion of time--the period from and including
1 October in the year before which the election is to be
held to the end of polling day for the election,
(c) in any other case--the period from and including the day
of the issue of the writ or writs for the election to the end
of polling day for the election.
95I Prohibition on incurring electoral communication expenditure
exceeding applicable cap during State campaigns
(1) It is unlawful for a party, group, candidate or third-party
campaigner to incur electoral communication expenditure for a
State election campaign during the capped expenditure period for
the election if it exceeds the applicable cap on electoral
communication expenditure.
(2) If the electoral communication expenditure of any party, group,
candidate or third-party campaigner is less than the applicable
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cap, the balance is not transferrable so as to increase the
applicable cap of any other party or person.
(3) The applicable cap for a candidate or group of candidates is for
electoral communication expenditure directed at the election of
the candidate or group.
95J When is electoral communication expenditure incurred
(1) For the purposes of this Division, electoral communication
expenditure is taken to be incurred when the services for which
the expenditure is incurred are actually provided or the goods for
which the expenditure is incurred are actually delivered.
(2) In particular:
(a) expenditure on advertising is incurred when the
advertising is broadcast or published, and
(b) expenditure on the production and distribution of election
material is incurred when the material is distributed, and
(c) expenditure on the employment of staff is incurred during
the period of their employment, and
(d) expenditure of a class prescribed by the regulations is
incurred at the time so prescribed.
[24] Section 96 Requirements for parties
Insert at the end of the section:
(3) It is unlawful for a party to make payments for electoral
expenditure for a State election campaign unless the payment is
made from the State campaign account of the party kept in
accordance with this section.
(4) The State campaign account of a party is to be a separate account
with a bank, credit union, building society or other entity
prescribed by the regulations.
(5) The following may be paid into the State campaign account of a
party:
(a) political donations made to the party after 1 January 2011
(including the proceeds of the investment or disposal of
any political donation of property after that date that is held
as an asset of the account),
(b) payments made to the party under Part 5 at any time,
(c) money borrowed by the party at any time,
(d) a bequest to the party,
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(e) money belonging to the party on 1 January 2011 (including
the proceeds of the investment or disposal of any other
property belonging to the party on or before that date),
(f) any other money of a kind that is prescribed by the
regulations for the purposes of this subsection.
(6) However, the following may not be paid into the State campaign
account of a party:
(a) a party subscription referred to in section 95D, other than
any amount that exceeds the maximum subscription
referred to in that section and that constitutes a political
donation to the party,
(b) any amount of a political donation to the party that exceeds
the applicable cap on political donations to the party under
Division 2A,
(c) any money paid to the party under Part 6A,
(d) any other money of a kind that is prescribed by the
regulations for the purposes of this subsection.
(7) This section does not prevent payments being made out of the
State campaign account that are in addition to the payments for
electoral expenditure referred to in subsection (3).
[25] Section 96AA
Insert after section 96A:
96AA Requirements for third-party campaigners
(1) It is unlawful for a third-party campaigner to make payments for
electoral communication expenditure incurred during a capped
expenditure period, or to accept political donations for the
purposes of incurring that expenditure, unless:
(a) the third-party campaigner is registered under this Act, and
(b) the third-party campaigner has an official agent, and
(c) the payments are made by, and the donations are made to,
that agent.
Note. Section 38C prevents registration of third-party campaigners in
the period of 7 days before any State election.
(2) It is unlawful for third-party campaigners to make payments for
any such electoral communication expenditure, or to use political
donations for any such purpose, unless:
(a) the payments for that expenditure are made by the official
agent of the third-party campaigner from a campaign
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account of the third-party campaigner kept in accordance
with this section, and
(b) the donations were paid by the official agent into the
campaign account of the third-party campaigner kept in
accordance with this section.
(3) Subject to the regulations, a person may be appointed in writing
by the official agent of a third-party campaigner to make
payments for electoral communication expenditure from a
campaign account by the official agent or to accept political
donations to be made to the official agent, or both.
(4) The campaign account of a third-party campaigner is to be a
separate account with a bank, credit union, building society or
other entity prescribed by the regulations.
(5) The following may not be paid into the campaign account of a
third-party campaigner:
(a) any amount of a political donation to the third-party
campaigner that exceeds the applicable cap on political
donations to the campaigner under Division 2A,
(b) any other amount of a kind that is prescribed by the
regulations.
(6) This section does not prevent payments being made out of the
campaign account of the third-party campaigner that are in
addition to the payments for electoral communication
expenditure referred to in this section.
[26] Section 96D
Omit the section. Insert instead:
96D Restrictions on persons from whom donations can be accepted
(1) It is unlawful for a political donation to a party, elected member,
group, candidate or third-party campaigner to be accepted unless
the donor is:
(a) an individual who is enrolled on the roll of electors for
State elections, the roll of electors for federal elections, or
the roll of electors for a local government election, or
(b) an entity that has a relevant business number.
(2) A relevant business number is:
(a) an Australian Business Number (ABN), or
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(b) any other number allocated or recognised by the Australian
Securities and Investments Commission for the purposes
of identifying the entity.
[27] Section 96EA
Insert after section 96E:
96EA Prohibition on political donations by parties etc to independent
candidates
(1) It is unlawful for a party (or a candidate or elected member
endorsed by a party) to make a political donation to a candidate,
or a group of candidates, not endorsed by that or any other party.
(2) It is unlawful for such a candidate or candidates to accept the
political donation.
[28] Section 96GAA
Insert before section 96GA:
96GAA Meaning of "prohibited donor"
For the purposes of this Division, a prohibited donor is:
(a) a property developer, or
(b) a tobacco industry business entity, or
(c) a liquor or gambling industry business entity,
and includes any industry representative organisation if the
majority of its members are such prohibited donors.
[29] Sections 96GA and 96GE
Omit "property developer" wherever occurring.
Insert instead "prohibited donor".
[30] Section 96GB Meaning of "property developer", "tobacco industry
business entity" and "liquor or gambling industry business entity"
Insert after section 96GB (2):
(2A) Each of the following persons is a tobacco industry business
entity:
(a) a corporation engaged in a business undertaking that is
mainly concerned with the manufacture or sale of tobacco
products,
(b) a person who is a close associate of a corporation referred
to in paragraph (a).
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(2B) Each of the following persons is a liquor or gambling industry
business entity:
(a) a corporation engaged in a business undertaking that is
mainly concerned with either or a combination of the
following, but only if it is for the ultimate purpose of
making a profit:
(i) the manufacture or sale of liquor products,
(ii) wagering, betting or other gambling (including the
manufacture of machines used primarily for that
purpose), or
(b) a person who is a close associate of a corporation referred
to in paragraph (a).
[31] Section 96H Offences relating to disclosures
Omit "or candidate" from section 96H (3) wherever occurring.
Insert instead ", candidate or third-party campaigner".
[32] Section 96HA
Insert after section 96H:
96HA Offences relating to caps on donations and expenditure
(1) A person who does any act that is unlawful under Division 2A or
2B is guilty of an offence if the person was, at the time of the act,
aware of the facts that result in the act being unlawful.
(2) A person who makes a donation with the intention of causing the
donation to be accepted in contravention of Division 2A is guilty
of an offence.
Maximum penalty: In the case of a party, 200 penalty units or in
any other case, 100 penalty units.
[33] Section 96I Other offences
Omit section 96I (1). Insert instead:
(1) A person who does any act that is unlawful under Division 3, 4 or
4A is guilty of an offence if the person was, at the time of the act,
aware of the facts that result in the act being unlawful.
[34] Section 96J Recovery of unlawful donations etc
Insert at the end of the section:
(2) This section extends to a political donation that would be
unlawful under this Part but for section 95B (5) or 95C (3).
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[35] Sections 96K Audit certificate and 96M Amendment of disclosures
Omit "or candidate" wherever occurring.
Insert instead ", candidate or third-party campaigner".
[36] Section 96N
Insert after section 96M:
96N Annual financial statements of registered parties to accompany
disclosures
(1) A declaration of disclosures by a party under this Part is to be
accompanied by a copy of the duly audited annual financial
statement of the party in a form approved by the Authority.
(2) The annual financial statement must set out the following:
(a) the total amount received by, or on behalf of, the party
during the financial year,
(b) the total amount paid by, or on behalf of, the party during
the financial year,
(c) the total outstanding amount, as at the end of the financial
year, of all debts incurred by, or on behalf of, the party,
(d) such other details about the amounts (or about particular
kinds of the amounts) so received or paid, or debts so
incurred, as the regulations require.
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Schedule 2 Amendments to Election Funding and
Disclosures Act 1981 No 78 relating to
election and other funding
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
Administration Fund means the fund established under
Division 2 of Part 6A.
Election Campaigns Fund means the fund established under
Part 5.
Policy Development Fund means the fund established under
Division 3 of Part 6A.
[2] Section 4 (1)
Omit the definitions of fund and primary votes.
[3] Part 5
Omit the Part. Insert instead:
Part 5 Public funding of State election campaigns
Division 1 Preliminary
54A Application to State elections only
(1) This Part does not apply in relation to local government elections.
(2) Accordingly, a reference in this Part to an election is a reference
that relates to a State election.
54B Part 6 definitions apply
Words and expressions used in this Part and in Part 6 have the
same meaning in this Part as they have in that Part, except where
the contrary intention appears.
55 Meaning of electoral communication expenditure for a State
election
(1) For the purposes of this Part, electoral communication
expenditure for a State election is electoral communication
expenditure incurred during the capped expenditure period for
the election within the meaning of section 95H.
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(2) The decision of the Authority as to whether any expenditure is or
is not electoral communication expenditure in accordance with
this Act, the regulations and the guidelines determined under
section 24 is final. The Auditor-General or an auditor is, for the
purposes of this Act, entitled to rely on any such decision of the
Authority.
Division 2 Public funding for electoral communication
expenditure of parties and candidates
56 Establishment of Election Campaigns Fund
(1) There is to be an Election Campaigns Fund to be kept by the
Authority in respect of State elections.
(2) Payments from the Election Campaigns Fund are to be
distributed in accordance with this Part.
57 Registered parties eligible for public funding of election
campaigns
(1) Parties are, subject to and in accordance with this Act, eligible for
payments from the Election Campaigns Fund in respect of a State
election (other than a by-election for the Assembly).
(2) A party is eligible for payments from the Election Campaigns
Fund in respect of any such State election if:
(a) it is a registered party on polling day for the State election,
and
(b) it endorses candidates who are duly nominated for the
State election and the Authority is satisfied that the
candidates claim to be endorsed by the party, and
(c) it satisfies at least one of the party eligibility criteria.
(3) The party eligibility criteria are as follows:
(a) in the case of an Assembly general election--the total
number of first preference votes received by all those
candidates endorsed by a party is at least 4 % of the total
number of first preference votes in all electoral districts in
which the candidates were duly nominated for election,
(b) in the case of a periodic Council election--the total
number of first preference votes received by all those
candidates endorsed by a party (and by all other candidates
included in the same group) is at least 4 % of the total
number of first preference votes in that election,
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(c) in the case of any election--at least one of those candidates
endorsed by a party is elected at the State election.
58 Amount of public funding for eligible parties
(1) In this section:
actual expenditure of a party means the total actual electoral
communication expenditure incurred by a party, irrespective of
whether it was incurred in connection with an Assembly general
election or with a periodic Council election or with both of those
elections.
applicable expenditure cap for a party means the applicable cap
on electoral communication expenditure for the party determined
under Division 2B of Part 6.
eligible Assembly party means a party that is eligible for payment
from the Election Campaigns Fund in respect of a State election
and that is not an eligible Council party in respect of that election.
eligible Council party means a party that is eligible for payment
from the Election Campaigns Fund in respect of a periodic
Council election because it satisfies the eligibility criteria under
section 57 (3) (b) or (c) relating to the Council, but that:
(a) did not endorse any candidate for election in the Assembly,
or
(b) only endorsed candidates for election in the Assembly in
not more than 10 electorates.
(2) The amount to be distributed from the Election Campaigns Fund
to a party eligible for payment from the Fund in respect of a State
election is the amount set out in the Table to this section.
TABLE
Eligible Assembly party
100% of so much of the actual expenditure of the party as is
within 010% of the applicable expenditure cap, plus
75% of so much of the actual expenditure of the party as is within
the next 1090% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the party as is within
the last 90100% of the applicable expenditure cap.
Eligible Council party
100% of so much of the actual expenditure of the party as is
within zero to one third of the applicable expenditure cap, plus
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75% of so much of the actual expenditure of the party as is within
the next one third to two thirds of the applicable expenditure cap,
plus
50% of so much of the actual expenditure of the party as is within
the last two thirds to 100% of the applicable expenditure cap.
59 Candidates eligible for public funding of election campaigns
(1) Candidates are, subject to and in accordance with this Act,
eligible for payments from the Election Campaigns Fund in
respect of a State election.
(2) A candidate who is duly nominated for a State election is eligible
for payments from the Election Campaigns Fund in respect of the
election if:
(a) the candidate is registered as such a candidate in the
Register of Candidates for the election on polling day for
the election, and
(b) in the case of a candidate for a periodic Council election,
the candidate was not included in a group, or was included
in a group none of whose members were endorsed by a
party, and
(c) the candidate satisfies at least one of the candidate
eligibility criteria.
(3) The candidate eligibility criteria are as follows:
(a) in the case of an Assembly general election or by-election
for the Assembly--the candidate is elected or the total
number of first preference votes received by the candidate
is at least 4% of the total number of first preference votes
in the electoral district in which the candidate was duly
nominated for election,
(b) in the case of a periodic Council election--the candidate is
elected or the total number of first preference votes
received by the candidate (and, if included in a group, by
all other candidates included in the same group) is at least
4% of the total number of first preference votes in the
election.
60 Amount of public funding for eligible candidates
(1) In this section:
actual expenditure of a candidate means the total actual electoral
communication expenditure incurred by the candidate in
connection with a State election.
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applicable expenditure cap for a candidate means the applicable
cap on electoral communication expenditure for the candidate
determined under Division 2B of Part 6.
eligible Assembly independent candidate means a candidate at
an Assembly election who is eligible for payment from the
Election Campaigns Fund and who was not endorsed by a party.
eligible Assembly party candidate means a candidate at an
Assembly election who is eligible for payment from the Election
Campaigns Fund and who was endorsed by a party.
eligible Council candidate means a candidate at a periodic
Council election who is eligible for payment from the Election
Campaigns Fund.
(2) The amount to be distributed from the Election Campaigns Fund
to a candidate eligible for payment from the Fund in respect of a
State election is the amount set out in the Table to this section.
TABLE
Eligible Assembly party candidate
100% of so much of the actual expenditure of the candidate as is
within 010% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is
within the next 1050% of the applicable expenditure cap.
Eligible Assembly independent candidate
100% of so much of the actual expenditure of the candidate as is
within 010% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is
within the next 1080% of the applicable expenditure cap.
Eligible Council candidate
100% of so much of the actual expenditure of the candidate as is
within zero to one third of the applicable expenditure cap, plus
75% of so much of the actual expenditure of the candidate as is
within the next one third to two thirds of the applicable
expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is
within the last two thirds to 100% of the applicable expenditure
cap.
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61 Expenditure claimed by both party and candidate
(1) The same item of electoral communication expenditure cannot,
for the purposes of this Division, be included as expenditure of
both a candidate and the party that endorses the candidate.
(2) If any such item of expenditure is claimed by both the candidate
and the party, the expenditure is taken to be that of the party and
not the candidate.
62 Payments to parties endorsing the same candidate or group
(1) If the Authority is satisfied that 2 or more registered parties
endorse the same candidate or same group of candidates for a
State election and that the candidate or candidates each claim to
be endorsed by those parties:
(a) those parties are taken, for the purposes of this Part, to
constitute one registered party instead of 2 or more
registered parties in relation to the candidate or candidates
at that election, and
(b) the amount that would otherwise be payable from the
Election Campaigns Fund to that one registered party in
respect of the election is payable instead to those 2 or more
registered parties as shared funding.
(2) An amount payable to 2 or more parties as shared funding is
payable to them:
(a) in equal shares, or
(b) in such other shares as the party agents of those parties
agree on and as are specified in a direction in writing (a
shared funding direction) signed by them and served on
the Authority.
(3) If a registered party would, but for this subsection, be entitled to
be paid 2 or more amounts by virtue of subsection (1), the party
is entitled to be paid only one of those amounts, being the largest
amount.
(4) A shared funding direction remains effective until revoked by the
party agents of the parties concerned and notice in writing of the
revocation is served on the Authority.
63 Entitlements to advance payments
(1) A registered party is, subject to and in accordance with this Act,
eligible for an advance payment from the Election Campaigns
Fund for electoral communication expenditure incurred in
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connection with a general election of an amount determined in
accordance with subsection (2).
(2) The amount payable, by way of advance payment, is an amount
equal to 30% of the total amount to which the party was entitled
under this Part (other than under section 67) in respect of the
previous general election.
(3) The amount payable by way of an advance payment under this
section may be paid, as a lump sum or by way of instalments, at
any time after the commencement of the capped expenditure
period for the election.
(4) Any amount paid to a party by way of advance payment under
this section in respect of a general election is to be deducted from
the amount payable under this Part to the party from the Election
Campaigns Fund in respect of that general election.
(5) If a party receives amounts by way of advance payment under
this section in respect of a general election in excess of the
amount (if any) to which it becomes entitled under this Part from
the Election Campaigns Fund in respect of that general election,
the amount of the excess must be repaid to the Authority within
60 days after the day for the return of the writs for that general
election.
(6) Any amount received by a party by way of advance payment
under this section in respect of a general election must be repaid,
on demand by the Authority, to the Authority if:
(a) the party does not contest the general election, or
(b) before the polling day for the general election, the party
ceases to operate or be registered or it has been, or is being,
dissolved or wound up.
(7) Any amount required to be repaid under this section may be
recovered by the Authority as a debt in any court of competent
jurisdiction.
(8) This section does not apply to the first general election to be held
in 2011.
Division 3 General provisions relating to funding
64 Claims for, and approvals of, payments
(1) A claim for payment under this Part (other than an advance
payment) in respect of a State election must be lodged with the
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Authority before the expiration of 120 days after the day for the
return of the writs for the election.
Note. Section 106 authorises the Authority to extend the time for lodging
a claim for payment.
(2) Subject to this Act, the Authority must:
(a) approve the making of the payment under this Part if:
(i) a claim for the payment is made by the party or party
agent for the party, or by the official agent of the
candidate, in the form and manner approved by the
Authority, and
(ii) the claim is reviewed by an auditor in accordance
with section 65, and
(iii) the Authority is satisfied that the party or candidate
is eligible for the payment, or
(b) refuse to approve the making of the payment under this
Part to the extent that the payment would exceed the
amount of electoral communication expenditure for which
payment may be made under this Part.
(3) In assessing a claim for payment under this Part, the Authority
may require the applicant to provide the Authority with further or
other information relative to the assessment.
(4) If the Authority is satisfied that it is proper to do so, it may
disallow, wholly or in part, any items of expenditure covered by
a claim under this Part.
65 Review of claim
A claim under this Part is not validly lodged with the Authority
unless it is accompanied by a certificate of an auditor stating:
(a) that the auditor was given full and free access at all
reasonable times to all accounts, records, documents and
papers of the agent by whom the claim is to be lodged, and
of the party or candidate, as the case may require, relating
directly or indirectly to the expenditure referred to in the
claim, and
(b) that the auditor duly examined such of those accounts,
records, documents and papers as the auditor considers
material for the purpose of giving the certificate, and
(c) that the auditor received all information and explanations
that the auditor asked for with respect to the expenditure
referred to in the claim, subject to the qualifications (if
any) specified in the certificate, and
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(d) that the auditor is satisfied that, from the information
available to the auditor, the expenditure specified in the
claim was incurred and is, having regard to this Act, the
regulations and the guidelines determined under
section 24, expenditure which may properly be the subject
of such a claim, and
(e) that the auditor has no reason to think that any statement in
the claim is not correct.
66 Expenditure to be vouched for
A claim under this Part is not validly lodged with the Authority
unless all expenditure specified in the claim is vouched for in the
manner prescribed by the regulations.
67 Making payments to party at direction of candidate
(1) A candidate to whom a payment is to be made under this Part in
respect of an election may direct the Authority to make the
payment to a party that:
(a) endorsed the candidate in that election, and
(b) was a registered party on the polling day for that election.
(2) In that case, the party becomes entitled to the payment and the
payment is to be made to that party instead of to that candidate.
(3) A direction under this section:
(a) may be made in anticipation of an entitlement to a payment
under this Part, and
(b) is required to be made in writing, and
(c) may be revoked by the candidate by notice to the Authority
given with the written consent of the party agent of the
party.
68 Making of payments
(1) Subject to this Act, a payment to be made to a party or candidate
under this Part is to be made to the party or party agent of the
party or to the official agent of the candidate (as the case
requires).
(2) The Authority may instead, if it thinks it proper to do so in the
circumstances, direct that the whole or any part of a payment
under this Part be made to a specified account with a financial
institution established for or in trust for a party, for the members
of a party or for a candidate.
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(3) Despite subsections (1) and (2), payments to be made to a
candidate are required to be paid into the campaign account of the
candidate if such an account is required to be kept under
section 96A.
(4) Subject to and in accordance with the regulations, the Authority
may, if it thinks it proper to do so in the circumstances, direct that
the whole or any part of a payment under this Part be made to a
person, body or organisation other than the party, party agent or
official agent referred to in subsection (1).
(5) Except as prescribed by the regulations, details of any direction
under subsection (4) are to be included in the report of the
Authority under section 107 (2) for the reporting period in which
the direction was given.
(6) Payments may be made under this Part to an agent subject to such
reasonable conditions with respect to the disbursement of the
amount paid as the Authority determines.
(7) An agent must comply with any condition determined in
accordance with subsection (6) and applicable to the agent or any
of his or her predecessors.
Maximum penalty: 100 penalty units.
(8) It is a defence to a prosecution for an offence arising under
subsection (7) if the agent establishes that the agent did not know,
and could not reasonably have known, that the condition was
applicable as referred to in that subsection.
(9) Where a payment is made under this Part and the recipient is not
entitled to receive the whole or any part of the amount paid,
whether because of a false statement in a claim or otherwise, the
amount or that part of the amount may be recovered by the
Authority as a debt in any court of competent jurisdiction.
69 Prepayment on lodgment of claims
(1) If the Authority is unable to finalise a claim for payment lodged
on behalf of a party within 14 days, the Authority is required to
make a preliminary payment within that period of 14 days.
(2) The preliminary payment is to be of an amount equal to 70 per
cent of the total amount estimated by the Authority to be payable
to the party (other than under section 67), reduced by the amount
of any advance payments made for the election concerned.
(3) In making an estimate under this section, the Authority may, but
need not, rely on information contained in the claim lodged by
the party.
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(4) If a party receives a preliminary payment in excess of the amount
(if any) to which it becomes entitled under a claim for payment,
the amount of the excess must be repaid to the Authority within
60 days after the Authority notifies the party.
(5) The amount of any such excess may be recovered by the
Authority as a debt in any court of competent jurisdiction.
70 Payments conditional on disclosure of political donations etc
(1) A party or candidate is not eligible for any payment (other than
advance payments) under this Part in respect of a general election
while any failure to lodge a requisite declaration (or annual
financial statement) under Part 6 for a past period continues in
respect of the party or candidate (or of any group of which the
candidate is a member).
(2) If the Authority is authorised under section 96J to recover from a
party or candidate (or from the official agent of the party or
candidate) an amount relating to the unlawful acceptance of a
political donation or other amount, the Authority may deduct the
amount from any payment (other than an advance payment)
under this Part.
71 Death of a candidate
If a candidate dies and would, but for his or her death, have been
entitled to a payment under this Part, the Authority may make the
payment to the candidate's legal personal representative or
otherwise in accordance with section 68.
72 Deductions from payment for debts owed
The Authority may deduct from any payment due under this Part
in respect of a party or candidate all or any overpayment or excess
amount that the Authority is authorised by this Part to recover as
a debt from the party or candidate.
73 Special provisions relating to groups
(1) If there is an alteration in the composition of a group at a periodic
Council election and the Authority is satisfied that the identity of
the group is substantially unaltered, payments may be made
under this Part as if its composition had not altered.
(2) A reference in this Part to the official agent of a candidate or to
the campaign account of a candidate is (if a candidate at a
periodic Council election) a reference to the official agent or
campaign account of the group.
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74 Public access to claims etc
(1) A claim lodged with the Authority for a payment under this Part,
together with any documents relating to the assessment of the
claim by the Authority, or a copy thereof, must be retained by the
Authority for at least 6 years after the polling day for the election
to which it or they relate. Any such claim and documents, or a
copy thereof, must be available for public inspection during
ordinary office hours.
(2) The Authority may, on application made to it and on payment of
a reasonable fee to be determined from time to time by the
Authority, provide copies of or extracts from any claim or
documents referred to in subsection (1).
75 False statements
(1) A person who, in any claim lodged with the Authority for a
payment under this Part, makes a statement that is false or
misleading in a material particular, knowing it to be false or not
reasonably believing it to be true, is guilty of an offence.
(2) A candidate who, in relation to any matter to be included in a
claim for a payment under this Part, gives or withholds giving
information to the official agent of the candidate knowing that it
will result in the making of a false or misleading claim by the
agent is guilty of an offence.
Maximum penalty: 200 penalty units or imprisonment for
2 years, or both.
[4] Part 6A
Omit the Part. Insert instead:
Part 6A Administrative and policy development
funding
Division 1 Preliminary
97A Application to State members and parties only
(1) This Part does not apply in relation to councillors.
(2) Accordingly, a reference in this Part to an elected member (or a
party with endorsed elected members) or to an election is a
reference that relates to a member of either House of Parliament
or to a State election.
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97B Administrative expenditure--payments from Administration Fund
(1) For the purposes of Division 2, a reference to administrative
expenditure is a reference to expenditure for administrative and
operating expenses and:
(a) includes a reference to the following:
(i) expenditure for the administration or management
of the activities of the eligible party or elected
member,
(ii) expenditure for conferences, seminars, meetings or
similar functions at which the policies of the eligible
party or elected member are discussed or
formulated,
(iii) expenditure on providing information to the public
or a section of the public about the eligible party or
elected member,
(iv) expenditure on providing information to members
and supporters of the eligible party or elected
member,
(v) expenditure in respect of the audit of the financial
accounts of, or claims for payment or disclosures
under this Act of, the eligible party or elected
member,
(vi) expenditure on the remuneration of staff engaged in
the above activities for the eligible party or elected
member (being the proportion of that remuneration
that relates to the time spent on those activities),
(vii) expenditure on equipment or vehicles used for the
purposes of the above activities (being the
proportion of the cost of their acquisition and
operation that relates to the use of the equipment or
vehicles for those activities),
(viii) expenditure on office accommodation for the above
staff and equipment,
(ix) expenditure on interest payments on loans, but
(b) does not include a reference to the following:
(i) electoral expenditure,
(ii) expenditure for which a member may claim a
parliamentary allowance as a member,
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(iii) expenditure incurred substantially in respect of
operations or activities that relate to the election of
members to a Parliament other than the NSW
Parliament,
(iv) expenditure prescribed by the regulations.
(2) The decision of the Authority as to whether any expenditure is or
is not administrative expenditure in accordance with this Act, the
regulations and the guidelines determined under section 24 is
final. The Auditor-General or an auditor is, for the purposes of
this Act, entitled to rely on any such decision of the Authority.
97C Policy development expenditure--payments from Policy
Development Fund
(1) For the purposes of Division 3, a reference to policy development
expenditure:
(a) includes a reference to the following:
(i) expenditure for providing information to the public
or a section of the public about the eligible party,
(ii) expenditure for conferences, seminars, meetings or
similar functions at which the policies of the eligible
party are discussed or formulated,
(iii) expenditure on providing information to members
and supporters of the eligible party,
(iv) expenditure in respect of the audit of the financial
accounts of, or claims for payment or disclosures
under this Act of, the eligible party,
(v) expenditure on the remuneration of staff engaged in
the above activities for the eligible party (being the
proportion of that remuneration that relates to the
time spent on those activities),
(vi) expenditure on equipment or vehicles used for the
purposes of the above activities (being the
proportion of the cost of their acquisition and
operation that relates to the use of the equipment or
vehicles for those activities),
(vii) expenditure on office accommodation for the above
staff and equipment,
(viii) expenditure on interest payments on loans, but
(b) does not include a reference to the following:
(i) electoral expenditure,
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(ii) expenditure incurred substantially in respect of
activities that relate to the election of members to a
Parliament other than the NSW Parliament,
(iii) expenditure prescribed by the regulations.
(2) The decision of the Authority as to whether any expenditure is or
is not policy development expenditure in accordance with this
Act, the regulations and the guidelines determined under
section 24 is final. The Auditor-General or an auditor is, for the
purposes of this Act, entitled to rely on any such decision of the
Authority.
Division 2 Administrative funding for parties and
independent members
97D Establishment of Administration Fund
(1) There is to be an Administration Fund to be kept by the Authority
in respect of parties and elected members.
(2) Payments from the Administration Fund are to be distributed in
accordance with this Division.
97E Public funding of eligible parties for administrative expenditure
(1) Parties are, subject to and in accordance with this Act, eligible for
annual payments, on a calendar year basis, from the
Administration Fund.
(2) A party is eligible for payments from the Administration Fund if:
(a) it was a registered party on polling day for the previous
State election and continues to be a registered party on the
date that the entitlement for an annual payment is
determined under this Division, and
(b) candidates endorsed by the party were elected at the State
election and the Authority is satisfied that the elected
members claimed to be endorsed by the party, and
(c) the Authority is satisfied that the elected members
continue to be members or representatives of the party on
the date that the entitlement for an annual payment is
determined under this Division.
(3) The annual amount to be distributed from the Administration
Fund to any such eligible party is the amount of actual
administrative expenditure incurred by or on behalf of the party
during the calendar year to which the payment relates, but not
exceeding:
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(a) $80,000 for each elected member endorsed by the party, or
(b) $2,000,000,
whichever is the lesser.
(4) The number of endorsed elected members of a party in relation to
any annual payment is to be determined as at the date that the
entitlement for an annual payment is determined under this
Division.
(5) Each of the amounts referred to in this section is an adjustable
amount that is to be adjusted for inflation as provided by
Schedule 1.
97F Public funding of Independent members for administrative
expenditure
(1) Elected members are, subject to and in accordance with this Act,
eligible for annual payments, on a calendar year basis, from the
Administration Fund.
(2) An elected member is eligible for payments from the
Administration Fund if:
(a) the elected member was not an endorsed candidate of any
party at the State election at which the member was
elected, and
(b) the Authority is satisfied that the elected member is not a
member or representative of any party on the date that the
entitlement for an annual payment is determined under this
Division.
(3) The annual amount to be distributed from the Administration
Fund to any such eligible elected member is the amount of actual
administrative expenditure incurred by or on behalf of the elected
member during the calendar year to which the payment relates,
but not exceeding $80,000.
(4) The amount referred to in subsection (3) is an adjustable amount
that is to be adjusted for inflation as provided by Schedule 1.
97G Parties with the same endorsed elected members
(1) If the Authority is satisfied that 2 or more registered parties
endorsed the same elected members for the State election at
which they were elected and that the members each claim to be
endorsed by those parties:
(a) those parties are taken, for the purposes of this Division, to
constitute one registered party instead of 2 or more
registered parties in relation to those elected members, and
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(b) the amount that would otherwise be payable from the
Administration Fund to that one registered party in respect
of the election is payable instead to those 2 or more
registered parties as shared funding.
(2) An amount payable to 2 or more parties as shared funding is
payable to them:
(a) in equal shares, or
(b) in such other shares as the party agents of those parties
agree on and as are specified in a direction in writing (a
shared funding direction) signed by them and served on
the Authority.
(3) If a registered party would, but for this subsection, be entitled to
be paid 2 or more amounts by virtue of subsection (1), the party
is entitled to be paid only one of those amounts, being the largest
amount.
(4) A shared funding direction remains effective until revoked by the
party agents of the parties concerned and notice in writing of the
revocation is served on the Authority.
Division 3 Policy development funding for parties not
entitled to administrative funding
97H Establishment of Policy Development Fund
(1) There is to be a Policy Development Fund to be kept by the
Authority in respect of parties that are not eligible for payments
from the Administration Fund.
(2) Payments from the Policy Development Fund are to be
distributed in accordance with this Division.
97I Public funding of eligible parties for policy development
expenditure
(1) Parties that are not eligible for payments from the Administration
Fund are, subject to and in accordance with this Act, eligible for
annual payments, on a calendar year basis, from the Policy
Development Fund.
(2) A party is eligible for payments from the Policy Development
Fund if:
(a) it is a registered party and has been a registered party for at
least 12 months on the date the entitlement for an annual
payment is determined under this Division, and
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(b) the Authority is satisfied that it operates as a genuine
political party, and
(c) it is not entitled to payments from the Administration
Fund.
(3) The annual amount to be distributed from the Policy
Development Fund to any such eligible party is the amount of
actual policy development expenditure incurred by or on behalf
of the party during the calendar year to which the payment
relates, but not exceeding the relevant maximum amount of
payment in relation to the party.
(4) The relevant maximum amount of an annual payment in relation
to an eligible party is the amount of 25 cents for each first
preference vote received by any candidate at the previous State
election who was endorsed by the party, being either:
(a) votes received by any such candidate at the previous
Assembly general election, or
(b) votes received by any such candidate (or any candidate
included in the same group) at the previous periodic
Council election.
The relevant maximum amount is zero if no such first preference
votes were received.
(5) Despite subsection (4), the relevant maximum amount is $5,000
if the amount referred to in subsection (4) is less than $5,000, but
only:
(a) during the first 8 calendar years after the commencement
of this Division in the case of a party that was a registered
party on that commencement, or
(b) during the first 8 calendar years after a party first becomes
a registered party after that commencement.
(6) The amounts referred to in subsections (4) and (5) are adjustable
amounts that are to be adjusted for inflation as provided by
Schedule 1.
Division 4 General provisions relating to funding
97J Claims for payment
(1) A party or elected member is entitled to receive a payment under
this Part for a calendar year only if the party or member makes a
claim for the payment in accordance with this Division.
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(2) A claim must:
(a) be lodged with the Authority and be in writing, and
(b) be accompanied by a declaration and such information as
the Authority may require under this Division, and
(c) be made within 6 months after the end of the calendar year
for which payment is to be made.
(3) Entitlement to payments under this Part are to be determined as
at the end of the calendar year for which the payment is to be
made.
(4) Payments under this Part are to be made to the agent of the party
or elected member concerned.
97K Declarations etc by agents
(1) An agent of any party or elected member who makes a claim for
a payment under this Part is required to make such declarations
and provide such information (accompanied by a certificate of an
auditor) as the Authority may require in connection with the
payment.
(2) The Authority is to make available to members of the public for
inspection the contents of any declaration, certificate or other
information it receives under this section.
97L Payments conditional on compliance with other obligations under
this Act
(1) A party or elected member is not eligible for any payment under
this Part while any failure to lodge a requisite declaration (or
annual financial statement) under Part 6 for a past period
continues in respect of the party or member.
(2) If the Authority is authorised under section 96J to recover from a
party or elected member (or from the official agent of the party or
member) an amount relating to the unlawful acceptance of a
political donation or other amount, the Authority may deduct the
amount from any payment under this Part.
97M False statements
(1) A person who, in any claim lodged with the Authority for a
payment under this Part or in any declaration under this Part,
makes a statement that is false or misleading in a material
particular, knowing it to be false or not reasonably believing it to
be true, is guilty of an offence.
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(2) A person who, in relation to any matter to be included in a claim
or declaration under this Part, gives or withholds giving
information to the party or agent knowing that it will result in the
making of a false or misleading claim or declaration in whole or
in part is guilty of an offence.
Maximum penalty: 100 penalty units.
[5] Schedule 1
Omit the Schedule. Insert instead:
Schedule 1 Adjustment for inflation of monetary
caps
1 Definitions
In this Schedule:
adjustable amount means an amount that a provision of this Act
provides is to be adjusted for inflation under this Schedule.
Consumer Price Index means the Consumer Price Index (All
Groups Index) for Sydney published by the Australian
Statistician.
Consumer Price Index number, in relation to a quarter, means
the number for that quarter appearing in the Consumer Price
Index.
2 Adjustment of political donation caps
(1) Each of the adjustable amounts specified in a provision of
Division 2A of Part 6 applies for the first financial year to which
the provision applies and is to be adjusted for inflation for
subsequent financial years as provided by this clause.
(2) The adjustable amounts that are to apply for a subsequent
financial year are to be determined by multiplying the adjustable
amounts that applied for the previous financial year by the annual
increase in the Consumer Price Index during that previous
financial year.
(3) The annual increase in the Consumer Price Index during a
financial year is to be calculated as B / A where:
A is the Consumer Price Index number for the last quarter for
which such a number was published before the start of the
financial year.
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B is the Consumer Price Index number for the last quarter for
which such a number was published before the end of the
financial year.
(4) If B / A is less than 1 (as a result of deflation), B / A is deemed to
be 1.
(5) Before the start of each financial year after the first financial year
of the operation of this clause, the Authority is to publish notice
on the NSW legislation website and its website of the amount of
each adjustable amount for the financial year (as adjusted under
this Schedule).
3 Adjustment of electoral communication expenditure caps
(1) Each of the adjustable amounts specified in a provision of
Division 2B of Part 6 applies for the first election period that is
current when the provision commences and is then to be adjusted
for inflation for subsequent election periods as provided by this
clause.
(2) An election period is the period between the polling days of
successive Assembly general elections.
(3) The adjustable amounts that are to apply for a subsequent
election period are to be determined by multiplying the adjustable
amounts that applied for the previous election period by the
increase in the Consumer Price Index during that previous
election period.
(4) The annual increase in the Consumer Price Index during an
election period is to be calculated as B / A where:
A is the Consumer Price Index number for the last quarter for
which such a number was published before the start of the
election period.
B is the Consumer Price Index number for the last quarter for
which such a number was published before the end of the election
period.
(5) If B / A is less than 1 (as a result of deflation), B / A is deemed to
be 1.
(6) Before the start of each election period after the election period
that is current when this clause commences, the Authority is to
publish notice on the NSW legislation website and its website of
the amount of each adjustable amount for the election period that
results from an adjustment under this clause.
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4 Adjustment of administrative funding and policy development
caps
(1) Each of the adjustable amounts specified in a provision of
Division 2 or 3 of Part 6A applies for the first calendar year to
which the provision applies and is to be adjusted for inflation for
subsequent calendar years as provided by this clause.
(2) The adjustable amounts that are to apply for a subsequent
calendar year are to be determined by multiplying the adjustable
amounts that applied for the previous calendar year by the annual
increase in the Consumer Price Index during that previous
calendar year.
(3) The annual increase in the Consumer Price Index during a
calendar year is to be calculated as B / A where:
A is the Consumer Price Index number for the last quarter for
which such a number was published before the start of the
calendar year.
B is the Consumer Price Index number for the last quarter for
which such a number was published before the end of the
calendar year.
(4) If B / A is less than 1 (as a result of deflation), B / A is deemed to
be 1.
(5) Before the start of each calendar year after the first calendar year
of the operation of this clause, the Authority is to publish notice
on the NSW legislation website and on its website of the amount
of each adjustable amount for the calendar year (as adjusted
under this Schedule).
5 Rounding of adjustments
(1) If the determination of an adjustable amount for a year or election
period under this Schedule results in an amount that is not a
whole number multiple of $100, the amount calculated is to be
rounded up to the nearest whole number multiple of $100 and that
amount as so rounded is the adjustable amount for that year or
election period.
(2) In the case of an adjustment of the amount of 25 cents specified
in section 97I (4) of this Act, the amount is to be rounded up to
the nearest whole number multiple of 0.01 cent if the
determination results in an amount that is not a whole number
multiple of 0.01 cent.
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Schedule 3 Miscellaneous amendments to Election
Funding and Disclosures Act 1981 No 78
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
ex officio official agent means an official agent other than an
official agent under paragraph (f), (f1) or (f2) of the definition of
official agent.
[2] Section 4 (1), definition of "official agent"
Insert "(or a person appointed official agent in place of the party agent under
section 46A)" after "the party agent of the party" in paragraph (a).
[3] Section 4 (1), definition of "official agent"
Insert "(or a person appointed official agent in place of the party agent under
section 46)" after "the party agent of the party" wherever occurring in
paragraphs (c) and (d).
[4] Section 4 (1), definition of "official agent"
Omit "section 49" in paragraph (f) of the definition.
Insert instead "section 46".
[5] Section 4 (1), definition of "official agent"
Insert after paragraph (f) of the definition:
(f1) in relation to an elected member for whom an official agent
is registered in the Register of Official Agents--that
official agent, or
(f2) in relation to a third-party campaigner--the official agent
registered in the Register of Official Agents for the
third-party campaigner, or
[6] Section 23 Particular functions
Insert ", and caps on," after "disclosures of" in section 23 (c).
[7] Section 23
Insert at the end of the section:
(2) For the purpose of ensuring compliance with this Act, the
Authority is authorised to make an application to the Supreme
Court for an injunction, declaration or other order that is within
the jurisdiction of the Court.
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[8] Section 24 Guidelines
Insert ", caps" after "claims" in section 24 (2).
[9] Section 26
Insert ", third-party campaigners" after "groups".
[10] Section 32A
Insert after section 32:
32A Deemed registration of nominated candidates and groups
(1) A person nominated as a candidate at an election in accordance
with the Parliamentary Electorates and Elections Act 1912 or in
accordance with the Local Government Act 1993 is deemed to be
registered as a candidate for the election.
(2) The candidates who comprise a group at an election are deemed
to be registered as a group for the election.
(3) The Authority is to make appropriate entries in the Register of
Candidates for an election to effect the registration of a candidate
or group deemed under this section to be registered for the
election.
[11] Part 4, Division 2A
Insert after Division 2 of Part 4:
Division 2A Register of Third-party Campaigners
38A Register of Third-party Campaigners to be kept
(1) The Authority is to keep a register, to be called the Register of
Third-party Campaigners, for each general election.
(2) The Authority is to keep separate Registers of Third-party
Campaigners for State and local government elections. The
register for State elections may be called the State Register of
Third-party Campaigners and the register for local government
elections may be called the Local Government Register of
Third-party Campaigners.
(3) The Register of Third-party Campaigners for a general election is
to be kept as from the polling day for the previous general
election.
(4) Subject to this Act, the Register of Third-party Campaigners is to
be kept in such form and manner as the Authority thinks fit.
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38B Registration
(1) Registration of a third-party campaigner is to be effected by the
insertion in the Register of Third-party Campaigners of the name
of the third-party campaigner.
(2) There is to be included in the Register of Third-party
Campaigners:
(a) such particulars as are required to be included in the
application for registration of the third-party campaigner,
and
(b) such other particulars as the Authority thinks fit.
38C Applications for registration
(1) Subject to this Act, the Authority is to register a person as a
third-party campaigner in the Register of Third-party
Campaigners for a general election if:
(a) application for registration is made by the person or the
person's official agent in the form and manner approved
by the Authority, and
(b) the application is received by the Authority before the
7th day before polling day for the general election and
after the polling day for the previous general election.
(2) An application for registration of a person as a third-party
campaigner must set out the following particulars:
(a) the full name and address of the person,
(b) such other particulars as may be prescribed.
(3) The application for registration is to be accompanied by an
appointment of the official agent of the third-party campaigner.
38D Lodging of applications
(1) An application for registration in the Register of Third-party
Campaigners may be lodged with an election official designated
by the Authority or with the Authority.
(2) An application lodged with an election official is deemed to have
been received by the Authority.
(3) An election official with whom an application for registration is
lodged must forthwith forward the application to the Authority.
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38E Refusal to register
(1) The Authority must not register a person in the Register of
Third-party Campaigners for a general election if the application
for registration was received by the Authority on or after the
7th day before polling day for the general election.
(2) The Authority may refuse to register a person as a third-party
campaigner if the Authority believes on reasonable grounds that
any particulars in the person's application for registration are
incomplete or not correct, but may, if it thinks fit, register the
person notwithstanding any such defect.
(3) Where, pursuant to subsection (2), the Authority refuses to
register a person as a third-party campaigner:
(a) the Authority must forthwith notify the person's official
agent of the refusal and of the reasons for the refusal, and
(b) the official agent may, within 30 days after the date of the
notification by the Authority, amend the application for
registration by substituting the relevant particulars, and
(c) the amended application is deemed to have been received
by the Authority when the original application was
received by it.
38F Amendment of Register
(1) Where an alteration is made in any of the particulars as stated in
the Register of Third-party Campaigners in relation to a person,
being particulars of the kind required to be stated in the
application for registration of the person, the person's official
agent must, within 30 days after the date of the alteration, furnish
the Authority with a statement in writing setting out details of the
alteration.
Maximum penalty: 2 penalty units.
(2) Where the Authority believes on reasonable grounds that a
third-party campaigner's official agent has not furnished the
Authority with a statement setting out details of any alteration, as
referred to in subsection (1), the Authority may, by notice in
writing served on the official agent, require the official agent to
furnish such a statement before the date specified in the notice, or
before the date of expiry of the period of 30 days after service of
the notice, whichever is later.
(3) If a third-party campaigner's official agent fails to furnish a
statement in accordance with subsection (2), the Authority may
cancel the registration of the third-party campaigner.
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(4) The Authority is to vary the particulars set out in the Register of
Third-party Campaigners in relation to a person in accordance
with a statement furnished in accordance with this section or in
accordance with the written request of the person's official agent,
unless the Authority believes on reasonable grounds that the
varied particulars are not correct.
(5) The Authority may cancel the registration of a third-party
campaigner at the written request of the person's official agent.
(6) The Authority may, of its own accord or on request, omit any
particulars from the Register of Third-party Campaigners if it is
satisfied that the particulars are not correct.
(7) The Authority may, of its own accord or on request, insert any
particulars in the Register of Third-party Campaigners if it is
satisfied that the particulars are correct.
(8) The Authority is to notify the relevant official agent of any
alterations made to the Register of Third-party Campaigners
pursuant to this section.
(9) The provisions of subsections (1)(4) do not, if the regulations so
provide, apply to particulars or alterations of a class or
description specified in the regulations for the purposes of this
subsection.
[12] Section 45 Registration
Omit "candidate or group" from section 45 (1).
Insert instead "candidate, group, elected member or third-party campaigner".
[13] Sections 4646C
Omit section 46. Insert instead:
46 Official agents of candidates and groups
(1) A candidate or group must appoint one official agent (an
appointed official agent) unless the candidate or group has an ex
officio official agent.
(2) If a party agent of a party is the ex officio official agent of a
candidate or group under paragraph (c) or (d) of the definition of
official agent in section 4 (1), the candidate or group may with
the consent of the party agent appoint an official agent (an
appointed official agent) to be the official agent of the candidate
or group in place of the party agent.
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(3) The appointment of an official agent by a candidate or group may
be revoked by the candidate or group and, in the case of the
appointment of an official agent in place of a party agent, may
also be revoked by the party agent.
(4) If an appointed official agent of a candidate or group dies or
resigns, the candidate or group by whom the official agent was
appointed must forthwith give notice of that fact in writing to the
Authority.
(5) If an appointed official agent of a candidate or group dies or
resigns or his or her appointment is revoked, the candidate or
group by whom the official agent was appointed must appoint
another official agent in his or her place unless the appointed
official agent was appointed in place of a party agent (in which
case the appointment of another official agent is optional and
requires the consent of the party agent).
(6) At any time when a candidate or group required to appoint an
official agent under this section does not have an appointed
official agent:
(a) the candidate is deemed to be his or her own official agent,
or
(b) the candidate whose name first appears on the list of
members of the group is deemed to be the official agent of
the group.
Note. This does not apply to the optional appointment of an official agent
in place of a party agent.
(7) For the purposes of the disclosure under Part 6 of political
donations received and electoral expenditure incurred by or on
behalf of a candidate or group:
(a) a person remains the appointed official agent of a
candidate or group despite the candidate or group ceasing
to be a candidate or group, and
(b) the appointment under this section of an official agent of a
candidate or group remains in force despite the candidate
or group ceasing to be a candidate or group, and
(c) this Division continues to apply after the candidate or
group ceases to be a candidate or group, as if the former
candidate or group were still a candidate or group for the
election concerned.
Note. For example, the former candidate or group will be required to
appoint another official agent following the death or resignation of an
official agent after the election and before the Part 6 disclosure
requirements have been fully complied with.
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(8) If a candidate or group contravenes a provision of this section, the
candidate or each member of the group is guilty of an offence.
Maximum penalty: 100 penalty units.
46A Official agents of elected members
(1) An elected member may appoint one official agent (an appointed
official agent) but only if the elected member does not have an
ex officio official agent under paragraph (b) of the definition of
official agent in section 4 (1).
(2) If a party agent is the ex officio official agent of an elected
member under paragraph (a) of the definition of official agent in
section 4 (1), the elected member may with the consent of the
party agent appoint one official agent (an appointed official
agent) to be the official agent of the elected member in place of
the party agent.
Note. If an elected member does not have an ex officio official agent and
does not appoint an official agent, the Authority will designate a person
as official agent for the elected member. See paragraph (g) of the
definition of official agent in section 4 (1).
(3) The appointment of an official agent by an elected member may
be revoked by the elected member and, in the case of the
appointment of an official agent in place of a party agent, may
also be revoked by the party agent.
(4) If the appointed official agent of an elected member dies or
resigns, the elected member must forthwith give notice of that
fact in writing to the Authority.
(5) If an appointed official agent of an elected member dies or
resigns or his or her appointment is revoked, the elected member
may appoint another official agent in his or her place unless the
appointed official agent was appointed in place of a party agent
(in which case the appointment of another official agent is
optional and requires the consent of the party agent).
46B Official agents of third-party campaigners
(1) A third-party campaigner may appoint one official agent (an
appointed official agent).
Note. If a third-party campaigner does not appoint an official agent, the
Authority can designate a person as official agent. See paragraph (g) of
the definition of official agent in section 4 (1).
(2) The appointment of an official agent may be revoked.
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(3) If the appointed official agent of a third-party campaigner dies or
resigns, the third-party campaigner must forthwith give notice of
that fact in writing to the Authority.
(4) If an appointed official agent of a third-party campaigner dies or
resigns or his or her appointment is revoked, the third-party
campaigner may appoint another official agent in his or her place.
46C Procedure for appointing official agents
(1) The appointment, or the revocation of the appointment, of an
official agent is to be made by notice in writing to the Authority.
(2) A notice under this Division is to be in the form approved by the
Authority.
(3) A notice of the appointment of an official agent is not properly
given unless it is accompanied by the signed acceptance of
appointment of the person appointed.
(4) A person appointed to any office or position under the
Parliamentary Electorates and Elections Act 1912 is not eligible
to be an official agent.
[14] Section 49 Where there is no official agent for a candidate or group
Omit the section.
[15] Section 51 Registers for by-elections
Omit section 51 (1) and (4). Insert instead respectively:
(1) The Authority is to keep 3 registers, to be called the Register of
Candidates, the Register of Third-party Campaigners and the
Register of Official Agents respectively, for the by-election.
(4) The provisions of Divisions 2, 2A and 4 apply to and in respect
of the Register of Candidates, the Register of Third-party
Campaigners and the Register of Official Agents for the
by-election in the same way as they apply to and in respect of the
Register of Candidates, the Register of Third-party Campaigners
and the Register of Official Agents under those Divisions, and so
apply as if:
(a) in the case of a State election, references to groups were
omitted, and
(b) references to a general election were references to the
by-election, and
(c) any other necessary adaptations were made.
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[16] Section 84 Definitions--general
Omit section 84 (2). Insert instead:
(2) An individual who, or a group of individuals which, accepts a gift
for use solely or substantially for a purpose related to the
proposed candidacy of the individual or individuals at a future
election is, for the purposes of this Part, taken to be a candidate
or group when accepting the gift.
Note. Section 96A (2) makes it unlawful for any such political donations
to be accepted unless the individual or group is registered as a candidate
or group under this Act.
(2A) An individual who, or a group of individuals which, makes a
payment for electoral expenditure for the election of the
individual or individuals at a future election is, for the purposes
of this Part, taken to be a candidate or group when making the
payment. The guidelines of the Authority may exclude minor
payments from the operation of this subsection.
Note. Section 96A (5A) makes it unlawful for any such electoral
expenditure to be incurred unless the individual or group is registered as
a candidate or group under this Act.
[17] Section 84 (3A)
Insert after section 84 (3):
(3A) Subsection (3) does not apply to a candidate at a time when the
candidate is an elected member.
[18] Section 96A Requirements for political donations to, and electoral
expenditure by, elected member, group or candidate
Omit section 96A (5). Insert instead:
(5) It is unlawful for an elected member to make payments for
electoral expenditure for their own election or re-election unless
the payments are made from their campaign account kept in
accordance with section 96B. The guidelines of the Authority
may exclude minor payments from the operation of this
subsection.
(5A) It is unlawful for a candidate or group to make payments for
electoral expenditure for their own election or re-election unless
the group or candidate is registered under this Act and the
payments are made from their campaign account kept in
accordance with section 96B. The guidelines of the Authority
may exclude minor payments from the operation of this
subsection.
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[19] Section 96K Audit certificate
Omit "either" from section 96K (3). Insert instead "any".
[20] Section 96K
Insert after section 96K (3) (b):
(c) where the Authority considers the cost of compliance
would be unreasonable.
[21] Section 107 Reports to Parliament
Insert after section 107 (2):
(2A) The Authority is required to include in the reports required by
subsection (2) statistical information about the use of its
enforcement powers under this Act.
[22] Section 110 Inspection
Omit "to enable the Authority to exercise its functions" from section 110 (1).
[23] Section 110 (6)(8)
Omit the subsections.
[24] Sections 110A and 110B
Omit section 110A. Insert instead:
110A Power to require provision of documents and information
(1) The Authority may, by notice in writing to a person, require the
person:
(a) to provide such information as the Authority reasonably
requires for the purposes of the enforcement of this Act, or
(b) to produce to the Authority, at the place and time specified
in the notice, any document that the Authority reasonably
requires for the purposes of the enforcement of this Act, or
(c) to answer questions about any matters in respect of which
information is reasonably required for the purposes of the
enforcement of this Act, or
(d) to attend at a specified place and time to answer questions
under this section if attendance at that place is reasonably
required in order that the questions can be properly put and
answered.
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(2) The place and time at which a person may be required to produce
a document, or to attend and answer questions, is to be a place
and time nominated by the Authority that is reasonable in the
circumstances.
(3) A notice under this section that requires a person to produce a
document may only require a person to produce existing
documents that are in the person's possession or that are within
the person's power to obtain lawfully.
(4) The Authority may take copies of any documents provided under
this section.
(5) If the Authority has reason to believe that any documents
provided under this section are evidence of an offence against
this Act or the regulations, the Authority may retain the
documents until proceedings for the offence have been heard and
determined.
(6) A person who, without reasonable excuse, fails to comply with a
requirement made of the person under this section is guilty of an
offence.
Maximum penalty: 100 penalty units.
(7) A person who provides any document or information, or answers
any question, in purported compliance with a requirement made
under this section, knowing that the document, information or
answer is false or misleading in a material particular, is guilty of
an offence.
Maximum penalty: 200 penalty units or imprisonment for
12 months, or both.
(8) A function conferred on the Authority by this section may be
exercised by any person authorised by the Authority to exercise
its functions under this section:
(a) who is employed under Chapter 1A of the Public Sector
Employment and Management Act 2002 in the
Government Service, or
(b) who is not so employed but is subject to the control and
direction of the Authority in relation to any function under
this section.
110B Compliance agreements
(1) The Authority may enter into a written agreement (a compliance
agreement) with any person affected by this Act for the purpose
of ensuring that the person complies with this Act or remedies an
apparent contravention of this Act.
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(2) A person affected by this Act includes a party, a group, an elected
member, a candidate and a third-party campaigner.
(3) A compliance agreement may specify the measures to be taken
by the person affected by this Act to ensure that the person
complies with this Act or remedies an apparent contravention of
this Act.
(4) A compliance agreement may be varied or terminated by further
agreement between the parties.
(5) The Supreme Court may, on application by the Authority, make
a declaration that a person has contravened a compliance
agreement, and make ancillary orders to enforce the compliance
agreement.
(6) This section does not affect proceedings for an offence in relation
to a contravention of this Act.
[25] Section 111A
Insert after section 111:
111A Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence
against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2) A penalty notice is a notice to the effect that, if the person served
does not wish to have the matter determined by a court, the
person can pay, within the time and to the person specified in the
notice, the amount of the penalty prescribed by the regulations for
the offence if dealt with under this section.
(3) A penalty notice under this section is declared to be a penalty
notice for the purposes of the Fines Act 1996.
(4) A penalty notice may be served personally or by post.
(5) If the amount of penalty prescribed for an alleged offence is paid
under this section, no person is liable to any further proceedings
for the alleged offence.
(6) Payment under this section is not to be regarded as an admission
of liability for the purpose of, and does not in any way affect or
prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
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(7) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision
creating the offence, and
(b) prescribe the amount of penalty payable for the offence if
dealt with under this section, and
(c) prescribe different amounts of penalties for different
offences or classes of offences.
(8) The amount of a penalty prescribed under this section for an
offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(9) This section does not limit the operation of any other provision
of, or made under, this or any other Act relating to proceedings
that may be taken in respect of offences.
(10) In this section, authorised officer means an inspector within the
meaning of section 110.
[26] Schedule 2 Transitional provisions
Insert at the end of clause 1A (1):
Election Funding and Disclosures Amendment Act 2010
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