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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Commonwealth Electoral Amendment
(Donations Reform) Bill 2014
No. , 2014
(Senator Rhiannon)
A Bill for an Act to amend the Commonwealth
Electoral Act 1918 to prohibit political donations
from certain industries, and for related purposes
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Amendments
3
Commonwealth Electoral Act 1918
3
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
1
A Bill for an Act to amend the Commonwealth
1
Electoral Act 1918 to prohibit political donations
2
from certain industries, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Commonwealth Electoral Amendment
6
(Donations Reform) Act 2014.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provision(s)
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 28th day after 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 Schedule(s)
7
Each Act 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repealed as set out in the applicable items in the Schedule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. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
3
Schedule 1
--Amendments
1
2
Commonwealth Electoral Act 1918
3
1 After Division 5A of Part XX
4
Insert:
5
Division 5B--Prohibited donations
6
314AH Definitions
7
In this Division:
8
close associate of a corporation means each of the following:
9
(a) a director or officer of the corporation or the spouse of such a
10
director or officer;
11
(b) a related body corporate of the corporation;
12
(c) a person whose voting power in the corporation or a related
13
body corporate of the corporation is greater than 20%, or the
14
spouse of such a person;
15
(d) if the corporation or a related body corporate of the
16
corporation is a stapled entity in relation to a stapled
17
security--the other stapled entity in relation to that stapled
18
security;
19
(e) if the corporation is a trustee, manager or responsible entity
20
in relation to a trust--a person who holds more than 20% of
21
the units in the trust (in the case of a unit trust) or is a
22
beneficiary of the trust (in the case of a discretionary trust).
23
electoral expenditure has the same meaning as in Division 5.
24
gift has a meaning affected by subsections 314AJ(2), (3) and (4).
25
liquor or gambling industry business entity means:
26
(a) a corporation engaged in a business undertaking that
27
regularly involves either or both of the following, but only if
28
it is for the ultimate purpose of making a profit:
29
(i) the manufacture or sale of liquor products;
30
Schedule 1 Amendments
4
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
No. , 2014
(ii) wagering, betting or other gambling (including the
1
manufacture of machines used primarily for that
2
purpose); or
3
(b) a person who is a close associate of a corporation referred to
4
in paragraph (a).
5
mineral resources or fossil fuel extraction industry business
6
entity means:
7
(a) a corporation engaged in a business undertaking that
8
regularly involves the exploration, prospecting, discovery,
9
development or extraction of mineral resources or fossil
10
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
political donation has the meaning given by section 314AJ.
16
prohibited donor means:
17
(a) a property developer; or
18
(b) a tobacco industry business entity; or
19
(c) a liquor or gambling industry business entity; or
20
(d) a mineral resources or fossil fuel extraction industry business
21
entity; or
22
(e) an industry representative organisation, if the majority of the
23
organisation's members are prohibited donors referred to in
24
any of paragraphs (a) to (d).
25
property developer means:
26
(a) a corporation engaged in a business that regularly involves
27
the making of planning applications (however described)
28
under State or Territory laws, by or on behalf of the
29
corporation, in connection with the residential or commercial
30
development of land, with the ultimate purpose of the sale or
31
lease of the land for profit; or
32
(b) a person who is a close associate of a corporation referred to
33
in paragraph (a).
34
Any activity engaged in by a corporation for the dominant purpose
35
of providing commercial premises at which the corporation or a
36
Amendments Schedule 1
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
5
related body corporate of the corporation will carry on business is
1
to be disregarded for the purpose of determining whether the
2
corporation is a property developer, unless that business involves
3
the sale or leasing of a substantial part of the premises.
4
related body corporate has the same meaning as in the
5
Corporations Act 2001.
6
spouse of a person includes a de facto partner of that person.
7
Note:
For de facto partner, see section 21 of the Acts Interpretation Act
8
1901.
9
stapled entity means an entity the interests in which are traded
10
along with the interests in another entity as stapled securities and
11
(in the case of a stapled entity that is a trust) includes any trustee,
12
manager or responsible entity in relation to the trust.
13
tobacco industry business entity means:
14
(a) a corporation engaged in a business undertaking that
15
regularly involves the manufacture or sale of tobacco
16
products; or
17
(b) a person who is a close associate of a corporation referred to
18
in paragraph (a).
19
voting power has the same meaning as in the Corporations Act
20
2001.
21
314AJ Meaning of political donation
22
(1) For the purposes of this Division, a political donation is:
23
(a) a gift made to or for the benefit of a political party or a State
24
branch of a political party; or
25
(b) a gift made to or for the benefit of a member of the
26
Commonwealth Parliament; or
27
(c) a gift made to or for the benefit of a candidate (including a
28
member of a group); or
29
(d) a gift made to or for the benefit of an associated entity of a
30
registered political party; or
31
(e) a gift made to or for the benefit of an entity or other person
32
(not being a party, elected member, group or candidate), the
33
whole or part of which was used or is intended to be used by
34
the entity or person:
35
Schedule 1 Amendments
6
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
No. , 2014
(i) to enable the entity or person to make, directly or
1
indirectly, a political donation or to incur electoral
2
expenditure in relation to an election; or
3
(ii) to reimburse the entity or person for making, directly or
4
indirectly, a political donation or incurring electoral
5
expenditure in relation to an election; or
6
(f) a loan:
7
(i) that, if it had been a gift, would have been a political
8
donation under this section; and
9
(ii) that was not made by a financial institution (within the
10
meaning of section 306A).
11
(2) An amount paid by a person as a contribution, entry fee or other
12
payment to entitle that or any other person to participate in or
13
otherwise obtain any benefit from a fund-raising venture or
14
function is, if the amount forms part of the proceeds of the venture
15
or function, taken to be a gift for the purposes of this Division.
16
(3) Despite paragraph (b) of the definition of gift in subsection 287(1),
17
an annual or other subscription paid to a political party, to a State
18
branch of a political party or to a division of a State branch of a
19
political party by:
20
(a) a member of the party, branch or division; or
21
(b) a person or entity for affiliation with the party, branch or
22
division;
23
is taken to be a gift to the party for the purposes of this Division,
24
unless:
25
(c) the subscription is paid by an individual as a member of the
26
party or for the individual's affiliation with the party, branch
27
or division; and
28
(d) the amount of the subscription paid during a financial year is
29
less than $1,000.
30
(4) Uncharged interest on a loan to an entity or other person is taken to
31
be a gift to the person for the purposes of this Division. For this
32
purpose, uncharged interest is the additional amount that would
33
have been payable by the person if:
34
(a) the loan had been made on terms requiring the payment of
35
interest at the generally prevailing interest rate for a loan of
36
that kind; and
37
(b) any interest payable had not been waived; and
38
Amendments Schedule 1
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
7
(c) any interest payments were not capitalised.
1
(5) The following are not political donations:
2
(a) a gift to an individual that was made in a private capacity to
3
the individual for his or her personal use and that the
4
individual has not used, and does not intend to use, solely or
5
substantially for a purpose related to an election or to his or
6
her duties as an elected member;
7
(b) a payment under Division 3 (election funding).
8
(6) However, if any part of a gift referred to in paragraph (5)(a) is
9
subsequently used to incur electoral expenditure in relation to an
10
election, that part of the gift is taken to be (and to always have
11
been) a political donation.
12
314AK Political donations by prohibited donors unlawful
13
(1) It is unlawful for a prohibited donor to make a political donation.
14
(2) It is unlawful for a person to make a political donation on behalf of
15
a prohibited donor.
16
(3) It is unlawful for a person to accept a political donation that was
17
made (wholly or partly) by a prohibited donor or by a person on
18
behalf of a prohibited donor.
19
(4) It is unlawful for a prohibited donor to solicit another person to
20
make a political donation.
21
(5) It is unlawful for a person to solicit another person on behalf of a
22
prohibited donor to make a political donation.
23
(6) If a person receives a gift that, under this section, it is unlawful for
24
the person to receive, an amount equal to the amount or value of
25
the gift is payable by that person to the Commonwealth and may be
26
recovered by the Commonwealth as a debt due to the
27
Commonwealth by action, in a court of competent jurisdiction,
28
against:
29
(a) in the case of a gift to or for the benefit of a political party or
30
a State branch of a political party:
31
(i) if the party or branch, as the case may be is a body
32
corporate--the party or branch, as the case may be; or
33
Schedule 1 Amendments
8
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
No. , 2014
(ii) in any other case--the agent of the party or branch, as
1
the case may be; or
2
(b) in any other case--the candidate or a member of the group or
3
the agent of the candidate or of the group, as the case may be.
4
314AL Offences--political donations
5
(1) A person (the defendant) commits an offence if:
6
(a) the defendant is a prohibited donor; and
7
(b) the defendant makes a gift; and
8
(c) the gift is a political donation.
9
Penalty: Imprisonment for 2 years or 800 penalty units, or both.
10
(2) A person (the defendant) commits an offence if:
11
(a) the defendant makes a gift on behalf of another person; and
12
(b) the gift is a political donation; and
13
(c) the other person is a prohibited donor.
14
Penalty: Imprisonment for 2 years or 800 penalty units, or both.
15
(3) A person (the defendant) commits an offence if:
16
(a) the defendant accepts a gift; and
17
(b) the gift is a political donation; and
18
(c) the gift was given (wholly or partly) by, or by a person on
19
behalf of, a prohibited donor.
20
Penalty: Imprisonment for 2 years or 800 penalty units, or both.
21
(4) A person (the defendant) commits an offence if:
22
(a) the defendant is a prohibited donor; and
23
(b) the defendant solicits another person to make a gift; and
24
(c) the gift is, or would be, a political donation.
25
Penalty: Imprisonment for 2 years or 800 penalty units, or both.
26
(5) A person (the defendant) commits an offence if:
27
(a) the defendant solicits another person to make a gift; and
28
(b) the defendant does so on behalf of another person (the
29
donor); and
30
(c) the donor is a prohibited donor; and
31
Amendments Schedule 1
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
9
(d) the gift is, or would be, a political donation.
1
Penalty: Imprisonment for 2 years or 800 penalty units, or both.
2
Fault element
3
(6) The fault element for the following paragraphs is knowledge by the
4
defendant:
5
(a) paragraphs (1)(a) and (c);
6
(b) paragraphs (2)(b) and (c);
7
(c) paragraphs (3)(b) and (c);
8
(d) paragraphs (4)(a) and (c);
9
(e) paragraphs (5)(c) and (d).
10
314AM Offence--scheme to circumvent prohibitions
11
(1) A person commits an offence if the person enters into or carries out
12
a scheme (whether alone or with others) for the purpose of
13
circumventing a prohibition or requirement of this Division.
14
Penalty: Imprisonment for 10 years.
15
(2) It does not matter whether the person also enters into or carries out
16
the scheme for other purposes.
17
(3) In this section:
18
scheme includes an arrangement, an understanding or a course of
19
conduct.
20
314AN Electoral Commission may determine that a person is
21
presumed not to be a prohibited donor
22
(1) The Electoral Commission may determine, in writing, that a person
23
(the donor) is presumed not to be a prohibited donor for the
24
purposes of this Division if:
25
(a) a donor or another person (the applicant) applies to the
26
Commission for the determination to be made; and
27
(b) the Commission is satisfied that it is more likely than not that
28
the donor is not a prohibited donor.
29
Schedule 1 Amendments
10
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
No. , 2014
(2) The Electoral Commission is to decide whether or not to make a
1
determination under subsection (1) solely on the basis of
2
information provided by the applicant.
3
(3) A determination under subsection (1) remains in force for 12
4
months after it is made, unless it is revoked earlier.
5
(4) The Electoral Commission may, by written notice to the applicant,
6
revoke a determination under subsection (1) if the Commission is
7
no longer satisfied of the matter in paragraph (1)(b). Subsection (2)
8
does not apply to a decision of whether or not to revoke a
9
determination under this subsection.
10
Effect of presumption
11
(5) If a person is, under a determination made under subsection (1),
12
presumed not to be a prohibited donor, then sections 314AK,
13
314AL and 314AM do not apply in relation to a gift made by or on
14
behalf of the person.
15
(6) However, subsection (5) does not apply to a person who knows
16
that information provided to the Electoral Commission in
17
connection with the making of the determination was false or
18
misleading in a material particular.
19
(7) The onus of proving that a person is not presumed not to be a
20
prohibited donor under a determination made under subsection (1)
21
is born by:
22
(a) in proceedings under section 314AK--the Commonwealth;
23
or
24
(b) in proceedings for an offence against section 314AL or
25
314AM--the prosecution.
26
Register of determinations
27
(8) The Electoral Commission must maintain, and publish on the
28
Commission's website, a register of determinations made under
29
subsection (1).
30
Determination is not a legislative instrument
31
(9) A determination made under subsection (1) is not a legislative
32
instrument.
33
Amendments Schedule 1
No. , 2014
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
11
2 Subsection 315A(1)
1
Omit "or 306(5)", substitute ", 306(5) or 314AK(6)".
2