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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Commonwealth Electoral Amendment
(Banning Dirty Donations) Bill 2022
No. , 2022
(Senator Waters)
A Bill for an Act to amend the Commonwealth
Electoral Act 1918, and for related purposes
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Commonwealth Electoral Act 1918
3
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations)
Bill 2022
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 2022
.
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
2
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
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repealed as set out in the applicable items in the Schedule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. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
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 significant third
29
party, unless the subscription is for membership of the
30
significant third party and the amount paid is less than $1,000
31
per year;
32
Schedule 1
Amendments
4
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
(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 5B of Part XX
13
Insert:
14
Division 5C--Prohibited donations
15
314AL 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 significant
21
third party.
22
Unlawful political donations may be recovered by the
23
Commonwealth as a debt due to the Commonwealth.
24
314AM 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. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
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
(b) a person who is a close associate of an entity referred to in
26
paragraph (a).
27
liquor or gambling industry business entity
means:
28
(a) a corporation engaged in a business undertaking that involves
29
either or both of the following, but only if it is for the
30
ultimate purpose of making a profit:
31
(i) the manufacture or sale of liquor products;
32
(ii) wagering, betting or other gambling (including the
33
manufacture of machines used primarily for that
34
purpose); or
35
Schedule 1
Amendments
6
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
(b) a person who is a close associate of a corporation referred to
1
in paragraph (a).
2
mineral resources or fossil fuel extraction industry business
3
entity
means:
4
(a) a corporation engaged in a business undertaking that involves
5
the exploration, prospecting, discovery, development or
6
extraction of mineral resources or fossil fuels; or
7
(b) a person who is a close associate of a corporation referred to
8
in paragraph (a).
9
officer
, in relation to a corporation, has the same meaning as in the
10
Corporations Act 2001
.
11
pharmaceutical entity
means:
12
(a) a corporation engaged in a business undertaking that involves
13
any of the following activities for the ultimate purpose of
14
making a profit:
15
(i) research into and testing of pharmaceutical products;
16
(ii) manufacture of pharmaceutical products;
17
(iii) sale, marketing or distribution of pharmaceutical
18
products; or
19
(b) a person who is a close associate of a corporation referred to
20
in paragraph (a).
21
political donation
has the meaning given by section 314AN.
22
prohibited donor
means:
23
(a) a property developer; or
24
(b) a financial institution; or
25
(c) a tobacco industry business entity; or
26
(d) a liquor or gambling industry business entity; or
27
(e) a mineral resources or fossil fuel extraction industry business
28
entity; or
29
(f) a defence industry entity; or
30
(g) a pharmaceutical entity; or
31
(h) an industry representative organisation, if the majority of the
32
organisation's members are prohibited donors referred to in
33
any of paragraphs (a) to (g).
34
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
7
property developer
means:
1
(a) a corporation engaged in a business that involves the making
2
of planning applications (however described) under State or
3
Territory laws, by or on behalf of the corporation, in
4
connection with the residential or commercial development
5
of land, with the ultimate purpose of the sale or lease of the
6
land for profit; or
7
(b) a person who is a close associate of a corporation referred to
8
in paragraph (a).
9
Any activity engaged in by a corporation for the dominant purpose
10
of providing commercial premises at which the corporation or a
11
related body corporate of the corporation will carry on business is
12
to be disregarded for the purpose of determining whether the
13
corporation is a property developer, unless that business involves
14
the sale or leasing of a substantial part of the premises.
15
related body corporate
has the same meaning as in the
16
Corporations Act 2001
.
17
spouse
of a person includes a de facto partner of that person.
18
Note:
For
de facto partner
, see section 21 of the
Acts Interpretation Act
19
1901
.
20
stapled entity
means an entity the interests in which are traded
21
along with the interests in another entity as stapled securities and
22
(in the case of a stapled entity that is a trust) includes any trustee,
23
manager or responsible entity in relation to the trust.
24
State branch
includes a division of a State branch.
25
tobacco industry business entity
means:
26
(a) a corporation engaged in a business undertaking that involves
27
the manufacture or sale of tobacco or inhaled nicotine
28
products; or
29
(b) a person who is a close associate of a corporation referred to
30
in paragraph (a).
31
voting power
has the same meaning as in the
Corporations Act
32
2001
.
33
Schedule 1
Amendments
8
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
314AN Meaning of political donation
1
(1) For the purposes of this Division, a
political donation
is:
2
(a) a gift made to or for the benefit of a political party or a State
3
branch of a political party; or
4
(b) a gift made to or for the benefit of a member of the
5
Commonwealth Parliament; or
6
(c) a gift made to or for the benefit of a candidate (including a
7
member of a group); or
8
(d) a gift made to or for the benefit of an associated entity of a
9
registered political party; or
10
(e) a gift made to or for the benefit of a significant third party,
11
the whole or part of which was used or is intended to be used
12
by the significant third party:
13
(i) to enable the significant third party to incur electoral
14
expenditure in relation to an election; or
15
(ii) to reimburse the significant third party for incurring
16
electoral expenditure in relation to an election; or
17
(f) a gift made to or for the benefit of an entity or other person
18
(not being a party, elected member, group or candidate), the
19
whole or part of which was used or is intended to be used by
20
the entity or person:
21
(i) to enable the entity or person to make, directly or
22
indirectly, a political donation or to incur electoral
23
expenditure in relation to an election; or
24
(ii) to reimburse the entity or person for making, directly or
25
indirectly, a political donation or incurring electoral
26
expenditure in relation to an election; or
27
(g) a loan:
28
(i) that, if it had been a gift, would have been a political
29
donation under this section; and
30
(ii) that was not made by a financial institution (within the
31
meaning of section 306A).
32
(2) The following are not political donations:
33
(a) a gift to an individual that was made in a private capacity to
34
the individual for his or her personal use and that the
35
individual has not used, and does not intend to use, solely or
36
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
9
substantially for a purpose related to an election or to his or
1
her duties as an elected member;
2
(b) a payment under Division 3 (election funding).
3
(3) However, if any part of a gift referred to in paragraph (2)(a) is
4
subsequently used to incur electoral expenditure in relation to an
5
election, that part of the gift is taken to be (and to always have
6
been) a political donation.
7
314AO Political donations by prohibited donors unlawful
8
(1) It is unlawful for a prohibited donor to make a political donation.
9
(2) It is unlawful for a person to make a political donation on behalf of
10
a prohibited donor.
11
(3) It is unlawful for a person to accept a political donation that was
12
made (wholly or partly) by a prohibited donor or by a person on
13
behalf of a prohibited donor.
14
(4) It is unlawful for a prohibited donor to solicit another person to
15
make a political donation.
16
(5) It is unlawful for a person to solicit another person on behalf of a
17
prohibited donor to make a political donation.
18
(6) If a person receives a gift that, under this section, it is unlawful for
19
the person to receive, an amount equal to the amount or value of
20
the gift is payable by that person to the Commonwealth and may be
21
recovered by the Commonwealth as a debt due to the
22
Commonwealth by action, in a court of competent jurisdiction,
23
against:
24
(a) in the case of a gift to or for the benefit of a political party or
25
a State branch of a political party:
26
(i) if the party or branch, as the case may be is a body
27
corporate--the party or branch, as the case may be; or
28
(ii) in any other case--the agent of the party or branch, as
29
the case may be; or
30
(b) in any other case--the candidate or a member of the group or
31
the agent of the candidate or of the group, as the case may be.
32
Schedule 1
Amendments
10
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
314AP Offences--political donations
1
(1) A person (the
defendant
) commits an offence if:
2
(a) the defendant is a prohibited donor; and
3
(b) the defendant makes a gift; and
4
(c) the gift is a political donation.
5
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
6
(2) A person (the
defendant
) commits an offence if:
7
(a) the defendant makes a gift on behalf of another person; and
8
(b) the gift is a political donation; and
9
(c) the other person is a prohibited donor.
10
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
11
(3) A person (the
defendant
) commits an offence if:
12
(a) the defendant accepts a gift; and
13
(b) the gift is a political donation; and
14
(c) the gift was given (wholly or partly) by, or by a person on
15
behalf of, a prohibited donor.
16
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
17
(4) A person (the
defendant
) commits an offence if:
18
(a) the defendant is a prohibited donor; and
19
(b) the defendant solicits another person to make a gift; and
20
(c) the gift is, or would be, a political donation.
21
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
22
(5) A person (the
defendant
) commits an offence if:
23
(a) the defendant solicits another person to make a gift; and
24
(b) the defendant does so on behalf of another person (the
25
donor
); and
26
(c) the donor is a prohibited donor; and
27
(d) the gift is, or would be, a political donation.
28
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
29
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
11
Fault element
1
(6) The fault element for the following paragraphs is knowledge by the
2
defendant:
3
(a) paragraphs (1)(a) and (c);
4
(b) paragraphs (2)(b) and (c);
5
(c) paragraphs (3)(b) and (c);
6
(d) paragraphs (4)(a) and (c);
7
(e) paragraphs (5)(c) and (d).
8
Civil penalty
9
(7) A person is liable to a civil penalty in the person contravenes
10
subsections (1) to (5).
11
Civil penalty:
12
The higher of the following amounts:
13
(a) 200 penalty units;
14
(b) if there is sufficient evidence for the court to determine the
15
amount or value, or an estimate of the amount of value, of the
16
gift at the time the gift is made--3 times that amount or
17
value.
18
314AQ Offence--scheme to circumvent prohibitions
19
(1) A person commits an offence if the person enters into or carries out
20
a scheme (whether alone or with others) for the purpose of
21
circumventing a prohibition or requirement of this Division.
22
Penalty: Imprisonment for 2 years.
23
(2) It does not matter whether the person also enters into or carries out
24
the scheme for other purposes.
25
(3) In this section:
26
scheme
includes an arrangement, an understanding or a course of
27
conduct.
28
Schedule 1
Amendments
12
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
314AR Electoral Commission may determine that a person is
1
presumed not to be a prohibited donor
2
(1) The Electoral Commission may determine, in writing, that a person
3
(the
donor
) is presumed not to be a prohibited donor for the
4
purposes of this Division if:
5
(a) a donor or another person (the
applicant
) applies to the
6
Commission for the determination to be made; and
7
(b) the Commission is satisfied that it is more likely than not that
8
the donor is not a prohibited donor.
9
(2) The Electoral Commission is to decide whether or not to make a
10
determination under subsection (1) solely on the basis of
11
information provided by the applicant.
12
(3) A determination under subsection (1) remains in force for 12
13
months after it is made, unless it is revoked earlier.
14
(4) The Electoral Commission may, by written notice to the applicant,
15
revoke a determination under subsection (1) if the Commission is
16
no longer satisfied of the matter in paragraph (1)(b). Subsection (2)
17
does not apply to a decision of whether or not to revoke a
18
determination under this subsection.
19
Effect of presumption
20
(5) If a person is, under a determination made under subsection (1),
21
presumed not to be a prohibited donor, then sections 314AO,
22
314AP and 314AQ do not apply in relation to a gift made by or on
23
behalf of the person.
24
(6) However, subsection (5) does not apply to a person who knows
25
that information provided to the Electoral Commission in
26
connection with the making of the determination was false or
27
misleading in a material particular.
28
(7) The onus of proving that a person is not presumed not to be a
29
prohibited donor under a determination made under subsection (1)
30
is born by:
31
(a) in proceedings under section 314AO--the Commonwealth;
32
or
33
Amendments
Schedule 1
No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
13
(b) in proceedings for an offence against section 314AP or
1
314AQ--the prosecution.
2
Register of determinations
3
(8) The Electoral Commission must maintain, and publish on the
4
Commission's website, a register of determinations made under
5
subsection (1).
6
Determination is not a legislative instrument
7
(9) A determination made under subsection (1) is not a legislative
8
instrument.
9
Division 5D--Capping donations
10
314AS Simplified outline of this Division
11
This Division places a cap on political donations of $3,000 within a
12
donation period. Political donations to the same registered political
13
party, member of the Commonwealth Parliament, candidate
14
(including a member of a group)or associated entity are aggregated
15
together for the purpose of calculating the donation cap.
16
Political donations are also attributed to the relevant registered
17
political party for the purpose of aggregating political donations.
18
It is unlawful for a registered political party, member of the
19
Commonwealth Parliament, candidate, group or associated entity
20
to accept a political donation if the donation would exceed the
21
donation cap individually or when aggregated with other relevant
22
donations.
23
Unlawful political donations may be recovered by the
24
Commonwealth as a debt due to the Commonwealth.
25
314AT Definitions
26
In this Division:
27
Schedule 1
Amendments
14
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
donation cap
means $3,000.
1
donation period:
the donation period begins on the day after the
2
polling day for a general election and ends on the polling day of
3
the next general election.
4
small contribution
means an amount less than $50.
5
State branch
includes a division of a State branch.
6
314AU Capping of political donations
7
A political donation made to, or for the benefit of, any of the
8
following:
9
(a) a political party or a State branch of a political party;
10
(b) a member of the Commonwealth Parliament;
11
(c) a candidate (including a member of a group);
12
(d) an associated entity;
13
must not exceed the donation cap for each donation period.
14
314AV Aggregating political donations
15
(1) This section applies to the dollar amount mentioned in the
16
definition of
donation cap
in section 314AT.
17
Aggregation of donations
18
(2) A political donation made by a donor of an amount equal to or less
19
than the donation cap is to be treated as a political donation that
20
exceeds the donation cap if that political donation and other
21
separate political donations made by that donor within the donation
22
period to the same:
23
(a) registered political party; or
24
(b) member of the Commonwealth Parliament; or
25
(c) candidate (including a member of a group); or
26
(d) associated entity;
27
would exceed the donation cap if aggregated together.
28
(3) For the avoidance of doubt, political donations made to the same
29
person in their capacity as a member of the Commonwealth
30
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No. , 2022
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
15
Parliament or in their capacity as a candidate in an election are to
1
be aggregated for the purpose of calculating the donation cap.
2
Attribution of donations
3
(4) A political donation made to:
4
(a) a member of the Commonwealth Parliament; or
5
(b) a candidate (including a member of a group); or
6
(c) a group that is endorsed by a registered political party; or
7
(d) a State branch of a political party; or
8
(e) an associated entity;
9
must also be included as a donation to the relevant registered
10
political party for the purpose of aggregating political donations.
11
(5) A political donation to a candidate or a member of a group must
12
also be included as a donation to the group for the purpose of
13
aggregating political donations.
14
Excluded donations
15
(6) For the purpose of aggregating political donations, the following
16
amounts are excluded from the calculation:
17
(a) a gift that is accepted by an associated entity for a purpose
18
that does not involve electoral expenditure;
19
(b) any small contribution, unless the small contribution is made
20
in contravention of section 314AQ.
21
314AW Exceeding donation cap unlawful
22
(1) Except as provided in this section, it is unlawful for a registered
23
political party, member of the Commonwealth Parliament,
24
candidate, group or associated entity to accept a political donation
25
if:
26
(a) the political donation; or
27
(b) the political donation when aggregated in accordance with
28
section 314AV;
29
would exceed the donation cap during a donation period.
30
Schedule 1
Amendments
16
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill
2022
No. , 2022
(2) It is not unlawful for a registered political party, member of the
1
Commonwealth Parliament, candidate, group or associated entity
2
to accept a political donation if:
3
(a) the political donation would exceed the donation cap only if
4
aggregated with other political donations from the donor in
5
the donation period; and
6
(b) the registered political party, member of the Commonwealth
7
Parliament, candidate, group or associated entity did not
8
know and could not reasonably have known of the other
9
political donation included in the aggregation; and
10
(c) an amount equal to the amount by which the aggregated
11
political donation exceeded the donation cap was returned by
12
the recipient of the political donation to the donor within 5
13
business days of the recipient discovering the donation
14
exceeded the donation cap.
15
(3) If a person receives a political donation that, under this section, it is
16
unlawful for the person to receive, an amount equal to the amount
17
or value of the political donation is payable by that person to the
18
Commonwealth and may be recovered by the Commonwealth as a
19
debt due to the Commonwealth by action, in a court of competent
20
jurisdiction, against:
21
(a) in the case of a political donation to or for the benefit of a
22
political party or 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 the case of a political donation to or for the benefit of an
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associated entity:
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(i) if the associated entity is a body corporate--the
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associated entity; or
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(ii) in any other case--the agent of the associated entity; or
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(c) in any other case--the candidate or a member of the group or
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the agent of the candidate or of the group, as the case may be.
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4 Subsection 315A(1)
35
After "or subsection 301(3),", insert "314AO(6) or 314AW(3),".
36