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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Commonwealth Electoral Amendment
(Banning Dirty Donations) Bill 2020
No. , 2020
(Senator Waters)
A Bill for an Act to amend the
Commonwealth
Electoral Act 1918
, and for related purposes
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Commonwealth Electoral Act 1918
3
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
1
A Bill for an Act to amend the
Commonwealth
1
Electoral Act 1918
, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Commonwealth Electoral Amendment (Banning
5
Dirty Donations) Act 2020
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after the end of the period of 3
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
3
Schedule 1--Amendments
1
2
Commonwealth Electoral Act 1918
3
1 Subsection 287(1) (definition of
gift
)
4
Repeal the definition, substitute:
5
gift
has the meaning given by section 287AAA.
6
2 After section 287
7
Insert:
8
287AAA Meaning of
gift
9
(1) A gift includes the following:
10
(a) any disposition of property made by a person to another
11
person, being a disposition made without consideration in
12
money or money's worth or with inadequate consideration;
13
(b) the provision of a service (other than volunteer labour) for no
14
consideration or for inadequate consideration;
15
(c) an amount paid by a person as a contribution, entry fee or
16
other payment to entitle that or any other person to
17
participate in or otherwise obtain any benefit from a
18
fundraising venture or function if the amount forms part of
19
the proceeds of the venture or function;
20
(d) an annual or other subscription paid to a registered political
21
party, to a State branch or a division of a State branch of a
22
political party, unless the subscription is for membership of
23
the registered political party and the amount paid is less than
24
$1,000 per year;
25
(e) an annual or other subscription paid to an associated entity,
26
unless the subscription is for membership of the associated
27
entity and the amount paid is less than $1,000 per year;
28
(f) an annual or other subscription paid to a political
29
campaigner, unless the subscription is for membership of the
30
entity and the amount paid is less than $1,000 per year;
31
Schedule 1
Amendments
4
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
No. , 2020
(g) uncharged interest on a loan to a political entity, being the
1
additional amount that would have been payable by the
2
political entity if:
3
(i) the loan had been made on terms requiring the payment
4
of interest at the generally prevailing interest rate for a
5
loan of that kind; and
6
(ii) any interest payable had not been waived; and
7
(iii) any interest payments were not capitalised.
8
(2) Each of the following is taken not to be a gift:
9
(a) a payment under Division 3;
10
(b) any visit, experience or activity provided for the purposes of
11
a political exchange program.
12
3 After Division 5A of Part XX
13
Insert:
14
Division 5B--Prohibited donations
15
314AH Simplified outline of this Division
16
This Division sets out the various types of business entities which
17
are prohibited donors. It is unlawful for a prohibited donor to make
18
a political donation. A political donation includes a gift or loan
19
made to or for the benefit of a political entity, a member of the
20
Commonwealth Parliament, an associated entity or a political
21
campaigner.
22
Unlawful political donations may be recovered by the
23
Commonwealth as a debt due to the Commonwealth.
24
314AI Definitions
25
In this Division:
26
close associate
of a corporation means each of the following:
27
(a) a director or officer of the corporation or the spouse of such a
28
director or officer;
29
(b) a related body corporate of the corporation;
30
Amendments
Schedule 1
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
5
(c) a person whose voting power in the corporation or a related
1
body corporate of the corporation is greater than 20%, or the
2
spouse of such a person;
3
(d) if the corporation or a related body corporate of the
4
corporation is a stapled entity in relation to a stapled
5
security--the other stapled entity in relation to that stapled
6
security;
7
(e) if the corporation is a trustee, manager or responsible entity
8
in relation to a trust--a person who holds more than 20% of
9
the units in the trust (in the case of a unit trust) or is a
10
beneficiary of the trust (in the case of a discretionary trust).
11
defence industry entity
means:
12
(a) a corporation engaged in a business undertaking that involves
13
the development or provision of goods and services intended
14
for the purposes of defence; or
15
(b) a person who is a close associate of a corporation referred to
16
in paragraph (a).
17
electoral expenditure
has the same meaning as in Division 5.
18
financial institution
means:
19
(a) an entity which carries on a business that consists of, or
20
includes, the provision of financial services or financial
21
products and which is:
22
(i) a bank; or
23
(ii) a credit union; or
24
(iii) a building society; or
25
(iv) any other entity registered under the Australian
26
Financial Institutions Commission Codes as a special
27
service provider; or
28
(b) a person who is a close associate of an entity referred to in
29
paragraph (a).
30
Note: See section 111AZB of the
Corporations Act 2001
for the
31
Australian Financial Institutions Commission Codes.
32
liquor or gambling industry business entity
means:
33
(a) a corporation engaged in a business undertaking that involves
34
either or both of the following, but only if it is for the
35
ultimate purpose of making a profit:
36
Schedule 1
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6
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
No. , 2020
(i) the manufacture or sale of liquor products;
1
(ii) wagering, betting or other gambling (including the
2
manufacture of machines used primarily for that
3
purpose); or
4
(b) a person who is a close associate of a corporation referred to
5
in paragraph (a).
6
mineral resources or fossil fuel extraction industry business
7
entity
means:
8
(a) a corporation engaged in a business undertaking that involves
9
the exploration, prospecting, discovery, development or
10
extraction of mineral resources or fossil fuels; or
11
(b) a person who is a close associate of a corporation referred to
12
in paragraph (a).
13
officer
, in relation to a corporation, has the same meaning as in the
14
Corporations Act 2001
.
15
pharmaceutical entity
means:
16
(a) a corporation engaged in a business undertaking that involves
17
any of the following activities for the ultimate purpose of
18
making a profit:
19
(i) research into and testing of pharmaceutical products;
20
(ii) manufacture of pharmaceutical products;
21
(iii) sale, marketing or distribution of pharmaceutical
22
products; or
23
(b) a person who is a close associate of a corporation referred to
24
in paragraph (a).
25
political donation
has the meaning given by section 314AJ.
26
prohibited donor
means:
27
(a) a property developer; or
28
(b) a financial institution; or
29
(c) a tobacco industry business entity; or
30
(d) a liquor or gambling industry business entity; or
31
(e) a mineral resources or fossil fuel extraction industry business
32
entity; or
33
(f) a defence industry entity; or
34
Amendments
Schedule 1
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
7
(g) a pharmaceutical entity; or
1
(h) an industry representative organisation, if the majority of the
2
organisation's members are prohibited donors referred to in
3
any of paragraphs (a) to (g).
4
property developer
means:
5
(a) a corporation engaged in a business that involves the making
6
of planning applications (however described) under State or
7
Territory laws, by or on behalf of the corporation, in
8
connection with the residential or commercial development
9
of land, with the ultimate purpose of the sale or lease of the
10
land for profit; or
11
(b) a person who is a close associate of a corporation referred to
12
in paragraph (a).
13
Any activity engaged in by a corporation for the dominant purpose
14
of providing commercial premises at which the corporation or a
15
related body corporate of the corporation will carry on business is
16
to be disregarded for the purpose of determining whether the
17
corporation is a property developer, unless that business involves
18
the sale or leasing of a substantial part of the premises.
19
related body corporate
has the same meaning as in the
20
Corporations Act 2001
.
21
spouse
of a person includes a de facto partner of that person.
22
Note:
For
de facto partner
, see section 21 of the
Acts Interpretation Act
23
1901
.
24
stapled entity
means an entity the interests in which are traded
25
along with the interests in another entity as stapled securities and
26
(in the case of a stapled entity that is a trust) includes any trustee,
27
manager or responsible entity in relation to the trust.
28
State branch
includes a division of a State branch.
29
tobacco industry business entity
means:
30
(a) a corporation engaged in a business undertaking that involves
31
the manufacture or sale of tobacco or inhaled nicotine
32
products; or
33
(b) a person who is a close associate of a corporation referred to
34
in paragraph (a).
35
Schedule 1
Amendments
8
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
No. , 2020
voting power
has the same meaning as in the
Corporations Act
1
2001
.
2
314AJ Meaning of
political donation
3
(1) For the purposes of this Division, a
political donation
is:
4
(a) a gift made to or for the benefit of a political party or a State
5
branch of a political party; or
6
(b) a gift made to or for the benefit of a member of the
7
Commonwealth Parliament; or
8
(c) a gift made to or for the benefit of a candidate (including a
9
member of a group); or
10
(d) a gift made to or for the benefit of an associated entity of a
11
registered political party; or
12
(e) a gift made to or for the benefit of a political campaigner; or
13
(f) a gift made to or for the benefit of an entity or other person
14
(not being a party, elected member, group or candidate), the
15
whole or part of which was used or is intended to be used by
16
the entity or person:
17
(i) to enable the entity or person to make, directly or
18
indirectly, a political donation or to incur electoral
19
expenditure in relation to an election; or
20
(ii) to reimburse the entity or person for making, directly or
21
indirectly, a political donation or incurring electoral
22
expenditure in relation to an election; or
23
(g) a loan:
24
(i) that, if it had been a gift, would have been a political
25
donation under this section; and
26
(ii) that was not made by a financial institution (within the
27
meaning of section 306A).
28
(2) The following are not political donations:
29
(a) a gift to an individual that was made in a private capacity to
30
the individual for his or her personal use and that the
31
individual has not used, and does not intend to use, solely or
32
substantially for a purpose related to an election or to his or
33
her duties as an elected member;
34
(b) a payment under Division 3 (election funding).
35
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No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
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(3) However, if any part of a gift referred to in paragraph (5)(a) is
1
subsequently used to incur electoral expenditure in relation to an
2
election, that part of the gift is taken to be (and to always have
3
been) a political donation.
4
314AK Political donations by prohibited donors unlawful
5
(1) It is unlawful for a prohibited donor to make a political donation.
6
(2) It is unlawful for a person to make a political donation on behalf of
7
a prohibited donor.
8
(3) It is unlawful for a person to accept a political donation that was
9
made (wholly or partly) by a prohibited donor or by a person on
10
behalf of a prohibited donor.
11
(4) It is unlawful for a prohibited donor to solicit another person to
12
make a political donation.
13
(5) It is unlawful for a person to solicit another person on behalf of a
14
prohibited donor to make a political donation.
15
(6) If a person receives a gift that, under this section, it is unlawful for
16
the person to receive, an amount equal to the amount or value of
17
the gift is payable by that person to the Commonwealth and may be
18
recovered by the Commonwealth as a debt due to the
19
Commonwealth by action, in a court of competent jurisdiction,
20
against:
21
(a) in the case of a gift to or for the benefit of a political party or
22
a State branch of a political party:
23
(i) if the party or branch, as the case may be is a body
24
corporate--the party or branch, as the case may be; or
25
(ii) in any other case--the agent of the party or branch, as
26
the case may be; or
27
(b) in any other case--the candidate or a member of the group or
28
the agent of the candidate or of the group, as the case may be.
29
314AL Offences--political donations
30
(1) A person (the
defendant
) commits an offence if:
31
(a) the defendant is a prohibited donor; and
32
Schedule 1
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(b) the defendant makes a gift; and
1
(c) the gift is a political donation.
2
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
3
(2) A person (the
defendant
) commits an offence if:
4
(a) the defendant makes a gift on behalf of another person; and
5
(b) the gift is a political donation; and
6
(c) the other person is a prohibited donor.
7
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
8
(3) A person (the
defendant
) commits an offence if:
9
(a) the defendant accepts a gift; and
10
(b) the gift is a political donation; and
11
(c) the gift was given (wholly or partly) by, or by a person on
12
behalf of, a prohibited donor.
13
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
14
(4) A person (the
defendant
) commits an offence if:
15
(a) the defendant is a prohibited donor; and
16
(b) the defendant solicits another person to make a gift; and
17
(c) the gift is, or would be, a political donation.
18
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
19
(5) A person (the
defendant
) commits an offence if:
20
(a) the defendant solicits another person to make a gift; and
21
(b) the defendant does so on behalf of another person (the
22
donor
); and
23
(c) the donor is a prohibited donor; and
24
(d) the gift is, or would be, a political donation.
25
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
26
Fault element
27
(6) The fault element for the following paragraphs is knowledge by the
28
defendant:
29
(a) paragraphs (1)(a) and (c);
30
Amendments
Schedule 1
No. , 2020
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
11
(b) paragraphs (2)(b) and (c);
1
(c) paragraphs (3)(b) and (c);
2
(d) paragraphs (4)(a) and (c);
3
(e) paragraphs (5)(c) and (d).
4
Civil penalty
5
(7) A person is liable to a civil penalty in the person contravenes
6
subsections (1) to (5).
7
Civil penalty:
8
The higher of the following amounts:
9
(a) 200 penalty units;
10
(b) if there is sufficient evidence for the court to determine the
11
amount or value, or an estimate of the amount of value, of the
12
gift at the time the gift is made-3 times that amount or value.
13
314AM Offence--scheme to circumvent prohibitions
14
(1) A person commits an offence if the person enters into or carries out
15
a scheme (whether alone or with others) for the purpose of
16
circumventing a prohibition or requirement of this Division.
17
Penalty: Imprisonment for 2 years.
18
(2) It does not matter whether the person also enters into or carries out
19
the scheme for other purposes.
20
(3) In this section:
21
scheme
includes an arrangement, an understanding or a course of
22
conduct.
23
314AN Electoral Commission may determine that a person is
24
presumed not to be a prohibited donor
25
(1) The Electoral Commission may determine, in writing, that a person
26
(the
donor
) is presumed not to be a prohibited donor for the
27
purposes of this Division if:
28
(a) a donor or another person (the
applicant
) applies to the
29
Commission for the determination to be made; and
30
Schedule 1
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12
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
No. , 2020
(b) the Commission is satisfied that it is more likely than not that
1
the donor is not a prohibited donor.
2
(2) The Electoral Commission is to decide whether or not to make a
3
determination under subsection (1) solely on the basis of
4
information provided by the applicant.
5
(3) A determination under subsection (1) remains in force for 12
6
months after it is made, unless it is revoked earlier.
7
(4) The Electoral Commission may, by written notice to the applicant,
8
revoke a determination under subsection (1) if the Commission is
9
no longer satisfied of the matter in paragraph (1)(b). Subsection (2)
10
does not apply to a decision of whether or not to revoke a
11
determination under this subsection.
12
Effect of presumption
13
(5) If a person is, under a determination made under subsection (1),
14
presumed not to be a prohibited donor, then sections 314AK,
15
314AL and 314AM do not apply in relation to a gift made by or on
16
behalf of the person.
17
(6) However, subsection (5) does not apply to a person who knows
18
that information provided to the Electoral Commission in
19
connection with the making of the determination was false or
20
misleading in a material particular.
21
(7) The onus of proving that a person is not presumed not to be a
22
prohibited donor under a determination made under subsection (1)
23
is born by:
24
(a) in proceedings under section 314AK--the Commonwealth;
25
or
26
(b) in proceedings for an offence against section 314AL or
27
314AM--the prosecution.
28
Register of determinations
29
(8) The Electoral Commission must maintain, and publish on the
30
Commission's website, a register of determinations made under
31
subsection (1).
32
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Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
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Determination is not a legislative instrument
1
(9) A determination made under subsection (1) is not a legislative
2
instrument.
3
Division 5C--Capping donations
4
314AO Simplified outline of this Division
5
This Division places a cap on political donations of $3,000 within a
6
donation period. Political donations to the same registered political
7
party, member of the Commonwealth Parliament, candidate
8
(including a member of a group), political campaigner or
9
associated entity are aggregated together for the purpose of
10
calculating the donation cap.
11
Political donations are also attributed to the relevant registered
12
political party for the purpose of aggregating political donations.
13
It is unlawful for a registered political party, member of the
14
Commonwealth Parliament, candidate, group, associated entity or
15
political campaigner to accept a political donation if the donation
16
would exceed the donation cap individually or when aggregated
17
with other relevant donations.
18
Unlawful political donations may be recovered by the
19
Commonwealth as a debt due to the Commonwealth.
20
314AP Definitions
21
In this Division:
22
donation cap
means $3,000.
23
donation period:
the donation period begins on the day after the
24
polling day for a general election and ends on the polling day of
25
the next general election.
26
small contribution
means an amount less than $50.
27
State branch
includes a division of a State branch.
28
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Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
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314AQ Capping of political donations
1
A political donation made to, or for the benefit of, any of the
2
following:
3
(a) a political party or a State branch of a political party;
4
(b) a member of the Commonwealth Parliament;
5
(b) a candidate (including a member of a group);
6
(c) a political campaigner;
7
(d) an associated entity;
8
must not exceed the donation cap for each donation period.
9
314AR Aggregating political donations
10
(1) This section applies to the dollar amount mentioned in the
11
definition of
donation cap
in section 314AP.
12
Aggregation of donations
13
(2) A political donation made by a donor of an amount equal to or less
14
than the donation cap is to be treated as a political donation that
15
exceeds the donation cap if that political donation and other
16
separate political donations made by that donor within the donation
17
period to the same:
18
(a) registered political party; or
19
(b) member of the Commonwealth Parliament; or
20
(c) candidate (including a member of a group); or
21
(d) political campaigner; or
22
(e) associated entity;
23
would exceed the donation cap if aggregated together.
24
(3) For the avoidance of doubt, political donations made to the same
25
person in their capacity as a member of the Commonwealth
26
Parliament or in their capacity as a candidate in an election are to
27
be aggregated for the purpose of calculating the donation cap.
28
Attribution of donations
29
(4) A political donation made to:
30
(a) a member of the Commonwealth Parliament; or
31
(b) a candidate (including a member of a group); or
32
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Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2020
15
(c) a group that is endorsed by a registered political party; or
1
(d) a State branch of a political party; or
2
(e) an associated entity;
3
must also be included as a donation to the relevant registered
4
political party for the purpose of aggregating political donations.
5
(5) A political donation to a candidate or a member of a group must
6
also be included as a donation to the group for the purpose of
7
aggregating political donations.
8
Excluded donations
9
(6) For the purpose of aggregating political donations, the following
10
amounts are excluded from the calculation:
11
(a) a gift that is accepted by an associated entity or political
12
campaigner for a purpose that does not involve election
13
expenditure;
14
(b) any small contribution, unless the small contribution is made
15
in contravention of section 314AM.
16
314AS Exceeding donation cap unlawful
17
(1) Except as provided in this section, it is unlawful for a registered
18
political party, member of the Commonwealth Parliament,
19
candidate, group, associated entity or political campaigner to
20
accept a political donation if:
21
(a) the political donation; or
22
(b) the political donation when aggregated in accordance with
23
section 314AR;
24
would exceed the donation cap during a donation period.
25
(2) It is not unlawful for a registered political party, member of the
26
Commonwealth Parliament, candidate, group, associated entity or
27
political campaigner to accept a political donation if:
28
(a) the political donation would exceed the donation cap only if
29
aggregated with other political donations from the donor in
30
the donation period; and
31
(b) the registered political party, member of the Commonwealth
32
Parliament, candidate, group, associated entity or political
33
campaigner did not know and could not reasonably have
34
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16
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
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No. , 2020
known of the other political donation included in the
1
aggregation; and
2
(c) an amount equal to the amount by which the aggregated
3
political donation exceeded the donation cap was returned by
4
the recipient of the political donation to the donor within 5
5
business days of the recipient discovering the donation
6
exceeded the donation cap.
7
(3) If a person receives a political donation that, under this section, it is
8
unlawful for the person to receive, an amount equal to the amount
9
or value of the political donation is payable by that person to the
10
Commonwealth and may be recovered by the Commonwealth as a
11
debt due to the Commonwealth by action, in a court of competent
12
jurisdiction, against:
13
(a) in the case of a political donation to or for the benefit of a
14
political party or a State branch of a political party:
15
(i) if the party or branch, as the case may be is a body
16
corporate--the party or branch, as the case may be; or
17
(ii) in any other case--the agent of the party or branch, as
18
the case may be; or
19
(b) in the case of a political donation to or for the benefit of an
20
associated entity or political campaigner:
21
(i) if the associated entity or political campaigner, as the
22
case may be is a body corporate--the associated entity
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or political campaigner; or
24
(ii) in any other case--the agent of the associated entity or
25
political campaigner, as the case may be; or
26
(c) in any other case--the candidate or a member of the group or
27
the agent of the candidate or of the group, as the case may be.
28
4 Subsection 315A(1)
29
After "or subsection 301(3)", insert "314AK(6) or 314AS(3)".
30