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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Commonwealth Electoral Amendment
(Cleaning up Political Donations) Bill
2023
No. , 2023
(Mr Wilkie)
A Bill for an Act to amend the Commonwealth
Electoral Act 1918, and for related purposes
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
i
Contents
1
Short title .............................................................................. 1
2
Commencement .................................................................... 1
3
Schedules .............................................................................. 2
Schedule 1--Disclosure threshold
3
Commonwealth Electoral Act 1918
3
Schedule 2--Real-time disclosure of donations
4
Commonwealth Electoral Act 1918
4
Schedule 3--Prohibited donors
10
Commonwealth Electoral Act 1918
10
Schedule 4--Capping donations
18
Commonwealth Electoral Act 1918
18
Schedule 5--Definition of gift
22
Commonwealth Electoral Act 1918
22
Schedule 6--Capping electoral expenditure
26
Commonwealth Electoral Act 1918
26
Schedule 7--Penalties
36
Commonwealth Electoral Act 1918
36
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
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 (Cleaning up
5
Political Donations) Act 2023
.
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 (Cleaning up Political
Donations) Bill 2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The first 1 July occurring after 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 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
Disclosure threshold
Schedule 1
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
3
Schedule 1--Disclosure threshold
1
2
Commonwealth Electoral Act 1918
3
1 Subsection 287(1) (definition of disclosure threshold)
4
Omit "$13,800", substitute "$1,000".
5
2 Subsection 314AC(2)
6
Repeal the subsection.
7
3 Transitional provision
8
Section 321A of the
Commonwealth Electoral Act 1918
(indexation of
9
disclosure threshold) applies to:
10
(a) the indexation year starting 12 months after the
11
commencement of this item; and
12
(b) later indexation years.
13
Schedule 2
Real-time disclosure of donations
4
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 2--Real-time disclosure of
1
donations
2
3
Commonwealth Electoral Act 1918
4
1 After Division 4 of Part XX
5
Insert:
6
Division 4A--Real-time disclosure of receipt of gifts
7
307AA Interpretation
8
In this Division:
9
agent or financial controller
:
10
(a) of a political party, candidate or group means the agent of the
11
political party, candidate or group; or
12
(b) of an entity that is not a political party or group means the
13
financial controller of the entity; or
14
(c) of an individual that is not a candidate means the individual.
15
disclosure gift
from a person or entity means
a gift from the person
16
or entity that is equal to or more than the disclosure threshold.
17
disclosure sum
from a person or entity means:
18
(a) a disclosure gift received from the person or entity; or
19
(b) a sum of gifts (whether or not any of the gifts is a disclosure
20
gift) received from the person or entity that is equal to or
21
more than the disclosure threshold.
22
reporting entity
means any of the following:
23
(a) a political entity;
24
(b) a group;
25
(c) an associated entity;
26
(d) a senator or a member of the House of Representatives.
27
Real-time disclosure of donations
Schedule 2
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
5
307AB Disclosure of certain gifts to reporting entities
1
Returns after receiving disclosure sum
2
(1) If a reporting entity receives a disclosure sum from a person or
3
entity during a financial year, the reporting entity's agent or
4
financial controller must provide a return in accordance with this
5
section within 2 business days after the day:
6
(a) the reporting entity receives the first gift (the
7
threshold-exceeding gift
) (whether or not a disclosure gift)
8
that makes the sum of gifts received during the financial year
9
a disclosure sum; and
10
(b) of each subsequent gift (a
post-threshold gift
) after the
11
threshold-exceeding gift the reporting entity receives from
12
the person or entity during the financial year.
13
Form of the return
14
(2) The return must:
15
(a) be in the approved form; and
16
(b) in the case of a return required under subsection (1) because
17
of a threshold-exceeding gift:
18
(i) set out the disclosure sum received; and
19
(ii) set out the amount or value of each gift that makes up
20
the disclosure sum; and
21
(iii) set out the date on which each of those gifts was
22
received;
23
(c) in the case of a return required under subsection (1) because
24
of a post-threshold gift:
25
(i) set out the amount or value of the post-threshold gift
26
that was received; and
27
(ii) set out the date on which the post-threshold gift was
28
received.
29
(3) The return must set out:
30
(a) if the person or entity was an unincorporated association,
31
other than a registered industrial organisation:
32
(i) the name of the association; and
33
Schedule 2
Real-time disclosure of donations
6
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(ii) the names and addresses of the members of the
1
executive committee (however described) of the
2
association; or
3
(b) if the gift or gifts from the person or entity was paid out of a
4
trust fund or paid out of the funds of a foundation:
5
(i) the names and addresses of the trustees of the fund or of
6
the foundation; and
7
(ii) the title or other description of the trust fund, or the
8
name of the foundation, as the case requires; or
9
(c) in any other case--the name and address of the person or
10
entity.
11
Civil penalty
12
(4) An agent or financial controller of a reporting entity must not
13
contravene subsection (1).
14
Civil penalty:
15
The higher of the following amounts:
16
(a) 200 penalty units;
17
(b) if there is sufficient evidence for the court to determine the
18
amount or value, or an estimate of the amount or value, of
19
gifts not disclosed--3 times that amount or value.
20
(5) Subsection 93(2) of the Regulatory Powers Act does not apply in
21
relation to a contravention of subsection (4) of this section.
22
307AC Disclosure of certain gifts to significant third parties or third
23
parties
24
Returns after use of gift
25
(1) If a significant third party or third party has used any part of a
26
disclosure sum from a person or entity for a covered purpose
27
during a financial year, the significant third party's or third party's
28
financial controller must provide a return in accordance with this
29
section within 2 business days after:
30
(a) if a part of a gift that makes up the sum has been used for a
31
covered purpose before the sum is a disclosure sum--the day
32
the sum became a disclosure sum; or
33
Real-time disclosure of donations
Schedule 2
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
7
(b) otherwise--the day after a part of the sum is used for a
1
covered purpose.
2
(2) If:
3
(a) a significant third party or third party uses during a financial
4
year a part of a gift (a
post-disclosure sum gift
) received
5
from a person or entity for a covered purpose; and
6
(b) before receiving the post-disclosure sum gift, the significant
7
third party or third party had made a return required under
8
subsection (1) in relation to the use of a disclosure sum from
9
the person or entity for a covered purpose during the
10
financial year;
11
the significant third party's or third party's financial controller
12
must provide a return in accordance with this section within 2
13
business days after the day the part of the post-disclosure sum gift
14
is used.
15
Covered purposes
16
(3) The following purposes are
covered purposes
:
17
(a) to enable a significant third party or third party to incur
18
electoral expenditure, or create or communicate electoral
19
matter;
20
(b) to reimburse a significant third party or third party for
21
incurring electoral expenditure, or creating or communicating
22
electoral matter.
23
Form of return
24
(4) The return must:
25
(a) be in the approved form; and
26
(b) in the case of a return required under subsection (1):
27
(i) set out the disclosure sum received; and
28
(ii) set out the amount or value of each gift that makes up
29
the disclosure sum; and
30
(iii) set out the date on which each of those gifts was
31
received; and
32
(iv) set out how the disclosure sum, in whole or part, was
33
used for a covered purpose; and
34
(c) in the case of a return required under subsection (2):
35
Schedule 2
Real-time disclosure of donations
8
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(i) set out the amount or value of the post-disclosure sum
1
gift that was received; and
2
(ii) set out the date on which the post-disclosure sum gift
3
was received; and
4
(iii) set out how the post-disclosure sum gift, in whole or
5
part, was used for a covered purpose.
6
(5) The return must set out:
7
(a) if the person or entity was an unincorporated association,
8
other than a registered industrial organisation:
9
(i) the name of the association; and
10
(ii) the names and addresses of the members of the
11
executive committee (however described) of the
12
association; or
13
(b) if the gift or gifts from the person or entity was paid out of a
14
trust fund or paid out of the funds of a foundation:
15
(i) the names and addresses of the trustees of the fund or of
16
the foundation; and
17
(ii) the title or other description of the trust fund, or the
18
name of the foundation, as the case requires; or
19
(c) in any other case--the name and address of the person or
20
entity.
21
Civil penalty
22
(6) A financial controller of a significant third party or third party must
23
not contravene subsection (1) or (2).
24
Civil penalty:
25
The higher of the following amounts:
26
(a) 60 penalty units;
27
(b) if there is sufficient evidence for the court to determine the
28
amount or value, or an estimate of the amount or value, of
29
gifts not disclosed--3 times that amount or value.
30
(7) Subsection 93(2) of the Regulatory Powers Act does not apply in
31
relation to a contravention of subsection (6) of this section.
32
Real-time disclosure of donations
Schedule 2
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
9
307AD Exception--private capacity
1
This Division does not apply to a gift made in a private capacity to
2
an individual for the individual's personal use.
3
2 Subsection 320(1) (after table item 4)
4
Insert:
5
4A
each return provided under
Division 4A
as soon as reasonably practicable
after receiving the return.
Schedule 3
Prohibited donors
10
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 3--Prohibited donors
1
2
Commonwealth Electoral Act 1918
3
1 After Division 5A of Part XX
4
Insert:
5
Division 5AA--Prohibited donations
6
314AGA Simplified outline of this Division
7
This Division sets out the various types of business entities which
8
are prohibited donors. It is unlawful for a prohibited donor to make
9
a political donation. A political donation includes a gift or loan
10
made to or for the benefit of a political entity, a member of the
11
Commonwealth Parliament, an associated entity or a significant
12
third party.
13
Unlawful political donations may be recovered by the
14
Commonwealth as a debt due to the Commonwealth.
15
314AGB Definitions
16
In this Division:
17
close associate
of a corporation means each of the following:
18
(a) a director or officer of the corporation or the spouse of such a
19
director or officer;
20
(b) a related body corporate of the corporation;
21
(c) a person whose voting power in the corporation or a related
22
body corporate of the corporation is greater than 20%, or the
23
spouse of such a person;
24
(d) if the corporation or a related body corporate of the
25
corporation is a stapled entity in relation to a stapled
26
security--the other stapled entity in relation to that stapled
27
security;
28
Prohibited donors
Schedule 3
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
11
(e) if the corporation is a trustee, manager or responsible entity
1
in relation to a trust--a person who holds more than 20% of
2
the units in the trust (in the case of a unit trust) or is a
3
beneficiary of the trust (in the case of a discretionary trust).
4
electoral expenditure
has the same meaning as in Division 5.
5
fossil fuel extraction industry business entity
means:
6
(a) a corporation engaged in a business undertaking that involves
7
the exploration, prospecting, discovery, development,
8
extraction or exportation of fossil fuels; or
9
(b) a person who is a close associate of a corporation referred to
10
in paragraph (a).
11
gambling industry business entity
means:
12
(a) a corporation engaged in a business undertaking that involves
13
wagering, betting or other gambling (including the
14
manufacture of machines used primarily for that purpose); or
15
(b) a person who is a close associate of a corporation referred to
16
in paragraph (a).
17
liquor industry business entity
means:
18
(a) a corporation engaged in a business undertaking that involves
19
the manufacture or sale of liquor products; or
20
(b) a person who is a close associate of a corporation referred to
21
in paragraph (a).
22
officer
, in relation to a corporation, has the same meaning as in the
23
Corporations Act 2001
.
24
political donation
has the meaning given by section 314AGC.
25
prohibited donor
means:
26
(a) a fossil fuel extraction industry business entity; or
27
(b) a gambling industry business entity; or
28
(c) a liquor industry business entity; or
29
(d) a tobacco industry business entity; or
30
(e) an industry representative organisation, if the majority of the
31
organisation's members are prohibited donors referred to in
32
any of paragraphs (a) to (d).
33
Schedule 3
Prohibited donors
12
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
related body corporate
has the same meaning as in the
1
Corporations Act 2001
.
2
spouse
of a person includes a de facto partner of that person.
3
Note:
For
de facto partner
, see section 21 of the
Acts Interpretation Act
4
1901
.
5
stapled entity
means an entity the interests in which are traded
6
along with the interests in another entity as stapled securities and
7
(in the case of a stapled entity that is a trust) includes any trustee,
8
manager or responsible entity in relation to the trust.
9
State branch
includes a division of a State branch.
10
tobacco industry business entity
means:
11
(a) a corporation engaged in a business undertaking that involves
12
the manufacture or sale of tobacco or inhaled nicotine
13
products; or
14
(b) a person who is a close associate of a corporation referred to
15
in paragraph (a).
16
voting power
has the same meaning as in the
Corporations Act
17
2001
.
18
314AGC Meaning of political donation
19
For the purposes of this Division, a
political donation
is:
20
(a) a gift made to or for the benefit of a political party or a State
21
branch of a political party; or
22
(b) a gift made to or for the benefit of a member of the
23
Commonwealth Parliament; or
24
(c) a gift made to or for the benefit of a candidate (including a
25
member of a group); or
26
(d) a gift made to or for the benefit of an associated entity of a
27
registered political party; or
28
(e) a gift made to or for the benefit of a significant third party; or
29
(f) a gift made to or for the benefit of an entity or other person
30
(not being a party, elected member, group or candidate), the
31
whole or part of which was used or is intended to be used by
32
the entity or person:
33
Prohibited donors
Schedule 3
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
13
(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
(g) 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
314AGD Political donations by prohibited donors unlawful
12
(1) It is unlawful for a prohibited donor to make a political donation.
13
(2) It is unlawful for a person to make a political donation on behalf of
14
a prohibited donor.
15
(3) It is unlawful for a person to accept a political donation that was
16
made (wholly or partly) by a prohibited donor or by a person on
17
behalf of a prohibited donor.
18
(4) It is unlawful for a prohibited donor to solicit another person to
19
make a political donation.
20
(5) It is unlawful for a person to solicit another person on behalf of a
21
prohibited donor to make a political donation.
22
(6) If a person receives a gift that, under this section, it is unlawful for
23
the person to receive, an amount equal to the amount or value of
24
the gift is payable by that person to the Commonwealth and may be
25
recovered by the Commonwealth as a debt due to the
26
Commonwealth by action, in a court of competent jurisdiction,
27
against:
28
(a) in the case of a gift to or for the benefit of a political party or
29
a State branch of a political party:
30
(i) if the party or branch, as the case may be is a body
31
corporate--the party or branch, as the case may be; or
32
(ii) in any other case--the agent of the party or branch, as
33
the case may be; or
34
Schedule 3
Prohibited donors
14
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(b) in any other case--the candidate or a member of the group or
1
the agent of the candidate or of the group, as the case may be.
2
314AGE Offences--political donations
3
(1) A person (the
defendant
) commits an offence if:
4
(a) the defendant is a prohibited donor; and
5
(b) the defendant makes a gift; and
6
(c) the gift is a political donation.
7
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
8
(2) A person (the
defendant
) commits an offence if:
9
(a) the defendant makes a gift on behalf of another person; and
10
(b) the gift is a political donation; and
11
(c) the other person is a prohibited donor.
12
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
13
(3) A person (the
defendant
) commits an offence if:
14
(a) the defendant accepts a gift; and
15
(b) the gift is a political donation; and
16
(c) the gift was given (wholly or partly) by, or by a person on
17
behalf of, a prohibited donor.
18
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
19
(4) A person (the
defendant
) commits an offence if:
20
(a) the defendant is a prohibited donor; and
21
(b) the defendant solicits another person to make a gift; and
22
(c) the gift is, or would be, a political donation.
23
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
24
(5) A person (the
defendant
) commits an offence if:
25
(a) the defendant solicits another person to make a gift; and
26
(b) the defendant does so on behalf of another person (the
27
donor
); and
28
(c) the donor is a prohibited donor; and
29
(d) the gift is, or would be, a political donation.
30
Prohibited donors
Schedule 3
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
15
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
1
Fault element
2
(6) The fault element for the following paragraphs is knowledge by the
3
defendant:
4
(a) paragraphs (1)(a) and (c);
5
(b) paragraphs (2)(b) and (c);
6
(c) paragraphs (3)(b) and (c);
7
(d) paragraphs (4)(a) and (c);
8
(e) paragraphs (5)(c) and (d).
9
Civil penalty
10
(7) A person is liable to a civil penalty if the person contravenes
11
subsections (1) to (5).
12
Civil penalty:
13
The higher of the following amounts:
14
(a) 200 penalty units;
15
(b) if there is sufficient evidence for the court to determine the
16
amount or value, or an estimate of the amount of value, of the
17
gift at the time the gift is made--3 times that amount or
18
value.
19
314AGF Offence--scheme to circumvent prohibitions
20
(1) A person commits an offence if the person enters into or carries out
21
a scheme (whether alone or with others) for the purpose of
22
circumventing a prohibition or requirement of this Division.
23
Penalty: Imprisonment for 2 years.
24
(2) It does not matter whether the person also enters into or carries out
25
the scheme for other purposes.
26
(3) In this section:
27
scheme
includes an arrangement, an understanding or a course of
28
conduct.
29
Schedule 3
Prohibited donors
16
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
314AGG 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 can decide whether or not to make a
10
determination under subsection (1) on the basis of information
11
provided by the applicant and their own inquiries.
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 314AGD,
22
314AGE and 314AGF do not apply in relation to a gift made by or
23
on 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 314AGD--the Commonwealth;
32
or
33
Prohibited donors
Schedule 3
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
17
(b) in proceedings for an offence against section 314AGE or
1
314AGF--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
2 Subsection 315A(1)
10
After "or subsection 301(3)", insert "or 314AGD(6)".
11
Schedule 4
Capping donations
18
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 4--Capping donations
1
2
Commonwealth Electoral Act 1918
3
1 Before Division 5B of Part XX
4
Insert:
5
Division 5AB--Capping donations
6
314AGH Simplified outline of this Division
7
This Division places a cap on political donations of $50,000 from
8
any one donor within a donation period. All political donations
9
made by a donor to the same or different recipients during a
10
donation period are aggregated together for the purpose of
11
calculating the donation cap.
12
It is unlawful for a registered political party, member of the
13
Commonwealth Parliament, candidate, group or associated entity
14
to accept a political donation if the donation would exceed the
15
donation cap individually or when aggregated with other relevant
16
donations.
17
Unlawful political donations may be recovered by the
18
Commonwealth as a debt due to the Commonwealth.
19
314AGI Definitions
20
In this Division:
21
donation cap
means $50,000.
22
donation period:
the donation period:
23
(a) begins 31 days after the polling day for a general election;
24
and
25
(b) ends 30 days after the polling day of the next general
26
election.
27
Capping donations
Schedule 4
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
19
State branch
includes a division of a State branch.
1
314AGJ Capping of political donations
2
A political donation made to, or for the benefit of, any of the
3
following:
4
(a) a political party or a State branch of a political party;
5
(b) a member of the Commonwealth Parliament;
6
(c) a candidate (including a member of a group);
7
(d) an associated entity;
8
must not exceed the donation cap for each donation period.
9
314AGK Aggregating political donations
10
(1) This section applies to the dollar amount mentioned in the
11
definition of
donation cap
in section 314AGI.
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 (whether to the
17
same or different recipients) within the donation period would
18
exceed the donation cap if aggregated together.
19
(3) For the avoidance of doubt, all political donations made by a donor
20
to any of the following during the donation period are to be
21
aggregated for the purpose of calculating the donation cap:
22
(a) a political party or a State branch of a political party;
23
(b) a member of the Commonwealth Parliament;
24
(c) a candidate (including a member of a group);
25
(d) a group that is endorsed by a registered political party;
26
(e) an associated entity.
27
Excluded donations
28
(4) For the purpose of aggregating political donations, a gift is
29
excluded from the calculation if the gift is accepted by an
30
Schedule 4
Capping donations
20
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
associated entity for a purpose that does not involve election
1
expenditure.
2
314AGL Exceeding donation cap unlawful
3
(1) Except as provided in this section, it is unlawful for a registered
4
political party, member of the Commonwealth Parliament,
5
candidate, group or associated entity to accept a political donation
6
if:
7
(a) the political donation; or
8
(b) the political donation when aggregated in accordance with
9
section 314AGK;
10
would exceed the donation cap during a donation period.
11
(2) It is not unlawful for a registered political party, member of the
12
Commonwealth Parliament, candidate, group or associated entity
13
to accept a political donation if:
14
(a) the political donation would exceed the donation cap only if
15
aggregated with other political donations from the donor in
16
the donation period; and
17
(b) the registered political party, member of the Commonwealth
18
Parliament, candidate, group or associated entity did not
19
know and could not reasonably have known of the other
20
political donation included in the aggregation; and
21
(c) an amount equal to the amount by which the aggregated
22
political donation exceeded the donation cap was returned by
23
the recipient of the political donation to the donor within 5
24
business days of the recipient discovering the donation
25
exceeded the donation cap.
26
(3) If a person receives a political donation that, under this section, it is
27
unlawful for the person to receive, an amount equal to the amount
28
or value of the political donation is payable by that person to the
29
Commonwealth and may be recovered by the Commonwealth as a
30
debt due to the Commonwealth by action, in a court of competent
31
jurisdiction, against:
32
(a) in the case of a political donation to or for the benefit of a
33
political party or a State branch of a political party:
34
(i) if the party or branch is a body corporate--the party or
35
branch; or
36
Capping donations
Schedule 4
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
21
(ii) in any other case--the agent of the party or branch; or
1
(b) in the case of a political donation to or for the benefit of an
2
associated entity:
3
(i) if the associated entity is a body corporate--the
4
associated entity; or
5
(ii) in any other case--the agent of the associated entity; or
6
(c) in any other case:
7
(i) the candidate or a member of the group; or
8
(ii) the agent of the candidate or of the group.
9
2 Subsection 315A(1)
10
Before ", or under a civil penalty order", insert "or 314AGL(3)".
11
Schedule 5
Definition of gift
22
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 5--Definition of gift
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--general
9
In this Act,
gift
:
10
(a) subject to paragraph (b), means:
11
(i) any disposition of property made by a person to another
12
person, being a disposition made without consideration
13
in money or money's worth or with inadequate
14
consideration; or
15
(ii) the provision of a service (other than volunteer labour)
16
for no consideration or for inadequate consideration; or
17
(iii) without limiting subparagraph (ii)--the provision of
18
professional services, by an individual who is a member
19
of the relevant profession, for no consideration or for
20
inadequate consideration; or
21
(iv) an amount paid by a person as a contribution, entry fee
22
or other payment to entitle that or any other person to
23
participate in or otherwise obtain any benefit from a
24
fundraising venture or function if the amount forms part
25
of the proceeds of the venture or function; or
26
(v) something that is a gift under section 287AAB or
27
287AAC; and
28
(b) does not include:
29
(i) a payment under Division 3; or
30
(ii) an annual subscription paid to a political party, to a
31
State branch of a political party or to a division of a
32
Definition of gift
Schedule 5
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
23
State branch of a political party by a person in respect of
1
the person's membership of the party, branch or
2
division; or
3
(iii) any visit, experience or activity provided for the
4
purposes of a political exchange program.
5
287AAB Meaning of gift--gifts to political entities
6
Scope of this section
7
(1) If:
8
(a) for the dominant purpose of promoting a political entity for
9
political office, a person:
10
(i) incurs electoral expenditure; or
11
(ii) gives a gift-in-kind to the political entity; and
12
(b) the value of the electoral expenditure or gift-in-kind (less any
13
consideration) is more than $1,000;
14
the electoral expenditure or gift-in-kind is taken to be a
gift
made
15
by the person to the political entity.
16
(2) However, a reference in this Part to the political entity receiving a
17
gift does not include a reference to receiving a thing that is taken to
18
be gift only because of subsection (1) if:
19
(a) the political entity does not know:
20
(i) that the thing is done; or
21
(ii) the matters mentioned in paragraphs (1)(a) and (b) in
22
relation to the thing; and
23
(b) this lack of knowledge is reasonable in the circumstances.
24
(3) A reference in this section to electoral expenditure incurred, or a
25
gift-in-kind given, by a person includes a reference to electoral
26
expenditure incurred, or a gift-in-kind given, by a person on behalf
27
of the members of an unincorporated association.
28
(4) For the purposes of this section:
29
(a) a thing done for the dominant purpose of promoting a
30
registered political party is taken not to be done for the
31
purpose of promoting:
32
(i) a State Branch of that party; or
33
Schedule 5
Definition of gift
24
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(ii) a candidate endorsed by that party; and
1
(b) a thing done for the dominant purpose of promoting a State
2
Branch of a registered political party is taken not to be done
3
for the purpose of promoting a candidate endorsed by that
4
State Branch; and
5
(c) a thing done for the dominant purpose of promoting a group
6
is taken not to be done for the purpose of promoting a
7
candidate in an election; and
8
(d) it does not matter whether a political entity knows the
9
identity of the person who does a thing.
10
(5) This section does not apply for the purposes of:
11
(a) subsections 314AGD(3) and (6) (about prohibited donors); or
12
(b) section 314AGL (about the donations cap).
13
287AAC Meaning of gift to member of Parliament
14
Scope of this section
15
(1) If:
16
(a) for the dominant purpose of promoting a member of the
17
Commonwealth Parliament for political office, a person:
18
(i) incurs electoral expenditure; or
19
(ii) gives a gift-in-kind to the member; and
20
(b) the value of the electoral expenditure or gift-in-kind (less any
21
consideration) is more than $1,000;
22
the electoral expenditure or gift-in-kind is taken to be a
gift
made
23
by the person to the member.
24
(2) However, a reference in this Part to the member receiving a gift
25
does not include a reference to receiving a thing that is taken to be
26
gift only because of subsection (1) if:
27
(a) the member does not know:
28
(i) that the thing is done; or
29
(ii) the matters mentioned in paragraphs (1)(a) and (b) in
30
relation to the thing; and
31
(b) this lack of knowledge is reasonable in the circumstances.
32
Definition of gift
Schedule 5
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
25
(3) A reference in this section to electoral expenditure incurred, or a
1
gift-in-kind given, by a person includes a reference to electoral
2
expenditure incurred, or a gift-in-kind given, by a person on behalf
3
of the members of an unincorporated association.
4
(4) For the purposes of this section:
5
(a) a thing done for the dominant purpose of promoting a
6
registered political party or a State Branch of a registered
7
political party is taken not to be done for the purpose of
8
promoting a member of the Commonwealth Parliament who
9
belongs to that party or State Branch; and
10
(b) it does not matter whether a member of the Commonwealth
11
Parliament knows the identity of the person who does a
12
thing.
13
(5) This section does not apply for the purposes of:
14
(a) subsections 314AGD(3) and (6) (about prohibited donors); or
15
(b) section 314AGL (about the donations cap).
16
Schedule 6
Capping electoral expenditure
26
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 6--Capping electoral expenditure
1
2
Commonwealth Electoral Act 1918
3
1 Part XX (heading)
4
After "
Election funding
", insert "
, electoral expenditure
".
5
2 After Division 5 of Part XX
6
Insert:
7
Division 5AAA--Capping electoral expenditure
8
314AAAA Definitions
9
In this Division:
10
acts in concert
: see subsection 314AAAE(5).
11
election
means:
12
(a) a general election; or
13
(b) a House of Representatives election for an Electoral
14
Division; or
15
(c) a Senate election for a State or Territory.
16
expenditure cap period
:
17
(a) for:
18
(i) a general election; or
19
(ii) a House of Representatives election that is part of a
20
general election; or
21
(iii) a Senate election that has the same polling day as a
22
general election;
23
means the 18 months ending on the polling day for the
24
election; and
25
(b) for any other election--means the period:
26
(i) starting on the day of the issue of the writ or writs for
27
the election; and
28
(ii) ending on the polling day for the election.
29
Capping electoral expenditure
Schedule 6
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
27
314AAAB Capping of political expenditure in general elections
1
(1) A registered political party contravenes this subsection if the total
2
amount of electoral expenditure incurred:
3
(a) by or with the authority of the political party; and
4
(b) in relation to a general election; and
5
(c) during the expenditure cap period for the election;
6
exceeds $40 million.
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 an estimate of the amount, of the excess
12
mentioned in this subsection--3 times that excess.
13
(2) A person contravenes this subsection if:
14
(a) the person is:
15
(i) a significant third party; or
16
(ii) a third party; and
17
(b) the total amount of electoral expenditure incurred:
18
(i) by or with the authority of the person; and
19
(ii) in relation to a general election; and
20
(iii) during the expenditure cap period for the election;
21
exceeds $5 million.
22
Civil penalty:
23
The higher of the following amounts:
24
(a) 200 penalty units;
25
(b) if there is sufficient evidence for the court to determine the
26
amount, or an estimate of the amount, of the excess
27
mentioned in paragraph (b) of this subsection--3 times that
28
excess.
29
(3) A reference in subsection (1) or (2) to electoral expenditure in
30
relation to a general election includes a reference to:
31
Schedule 6
Capping electoral expenditure
28
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(a) electoral expenditure in relation to a particular House of
1
Representatives election that forms part of the general
2
election; or
3
(b) electoral expenditure in relation to a particular Senate
4
election (if any) that has the same polling day as the general
5
election.
6
314AAAC Capping of political expenditure in Senate elections
7
Political parties
8
(1) A registered political party contravenes this subsection if:
9
(a) the political party endorses one or more candidates in a
10
Senate election for a particular State or Territory; and
11
(b) the total amount of electoral expenditure incurred:
12
(i) by or with the authority of the political party; and
13
(ii) in relation to the Senate election for the State or
14
Territory; and
15
(iii) during the expenditure cap period for the election;
16
exceeds the amount worked out by multiplying $500,000 by
17
the number of candidates in the Senate election for the State
18
or Territory that the political party endorses.
19
Civil penalty:
20
The higher of the following amounts:
21
(a) 200 penalty units;
22
(b) if there is sufficient evidence for the court to determine the
23
amount, or an estimate of the amount, of the excess
24
mentioned in paragraph (b) of this subsection--3 times that
25
excess.
26
(2) If the Senate election has the same polling day as a general
27
election, subsection (1) only applies to electoral expenditure that:
28
(a) is for advertising or other material that:
29
(i) explicitly mentions the Senate election or the name of a
30
candidate in the Senate election; and
31
(ii) is communicated to electors in the State or Territory;
32
and
33
Capping electoral expenditure
Schedule 6
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
29
(iii) is not mainly communicated to electors outside the State
1
or Territory; or
2
(b) disregarding subsection 314AAAE(1), is incurred by or with
3
the authority of:
4
(i) a candidate in the Senate election who is endorsed by
5
the political party; or
6
(ii) a person acting in concert with such a candidate.
7
Groups
8
(3) A candidate in a Senate election contravenes this subsection if:
9
(a) the candidate is a member of a group; and
10
(b) the candidate is not endorsed by a registered political party;
11
and
12
(c) the total amount of electoral expenditure incurred:
13
(i) by or with the authority of the candidate or another
14
member of the group; and
15
(ii) in relation to the election; and
16
(iii) during the expenditure cap period for the election;
17
exceeds the amount worked out by multiplying $500,000 by
18
the number of members of the group.
19
Civil penalty:
20
The higher of the following amounts:
21
(a) 200 penalty units;
22
(b) if there is sufficient evidence for the court to determine the
23
amount, or an estimate of the amount, of the excess
24
mentioned in paragraph (c) of this subsection--3 times that
25
excess.
26
Other candidates
27
(4) A candidate in a Senate election for a State or Territory
28
contravenes this subsection if:
29
(a) the candidate is not endorsed by a registered political party;
30
and
31
(b) the candidate is not a member of a group; and
32
(c) the total amount of electoral expenditure incurred:
33
Schedule 6
Capping electoral expenditure
30
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(i) by or with the authority of the candidate; and
1
(ii) in relation to the election; and
2
(iii) during the expenditure cap period for the election;
3
exceeds $500,000.
4
Note:
Expenditure incurred by a candidate who is endorsed by a registered
5
political party is taken to be incurred by the party: see
6
subsection 314AAAE(1).
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 an estimate of the amount, of the excess
12
mentioned in paragraph (c) of this subsection--3 times that
13
excess.
14
Significant third parties and third parties
15
(5) A person contravenes this subsection if:
16
(a) the person is:
17
(i) a significant third party; or
18
(ii) a third party; and
19
(b) the total amount of electoral expenditure incurred:
20
(i) by or with the authority of the person; and
21
(ii) in relation to the Senate election for a particular State or
22
Territory; and
23
(iii) during the expenditure cap period for the election;
24
exceeds $250,000.
25
Civil penalty:
26
The higher of the following amounts:
27
(a) 200 penalty units;
28
(b) if there is sufficient evidence for the court to determine the
29
amount, or an estimate of the amount, of the excess
30
mentioned in paragraph (b) of this subsection--3 times that
31
excess.
32
Capping electoral expenditure
Schedule 6
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
31
(6) If the Senate election has the same polling day as a general
1
election, subsection (5) only applies to electoral expenditure that is
2
for advertising or other material that:
3
(a) explicitly mentions the Senate election or the name of a
4
candidate in the Senate election; and
5
(b) is communicated to electors in the State or Territory; and
6
(c) is not mainly communicated to electors outside the State or
7
Territory.
8
314AAAD Capping of political expenditure in House of
9
Representatives elections
10
Political parties
11
(1) A registered political party contravenes this subsection if:
12
(a) the political party endorses a candidate in a House of
13
Representatives election for a particular Electoral Division;
14
and
15
(b) the total amount of electoral expenditure incurred:
16
(i) by or with the authority of the political party; and
17
(ii) in relation to the House of Representatives election for
18
the Electoral Division; and
19
(iii) during the expenditure cap period for the election;
20
exceeds $250,000.
21
Civil penalty:
22
The higher of the following amounts:
23
(a) 200 penalty units;
24
(b) if there is sufficient evidence for the court to determine the
25
amount, or an estimate of the amount, of the excess
26
mentioned in paragraph (b) of this subsection--3 times that
27
excess.
28
(2) If the House of Representatives election is part of a general
29
election, subsection (1) only applies to electoral expenditure that:
30
(a) is for advertising or other material that:
31
Schedule 6
Capping electoral expenditure
32
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(i) explicitly mentions the Electoral Division or the name
1
of a candidate in the House of Representatives election;
2
and
3
(ii) is communicated to electors in the Electoral Division;
4
and
5
(iii) is not mainly communicated to electors outside the
6
Electoral Division; or
7
(b) disregarding subsection 314AAAE(1), is incurred by or with
8
the authority of:
9
(i) a candidate in the House of Representatives election
10
who is endorsed by the political party; or
11
(ii) a person acting in concert with such a candidate.
12
Candidates
13
(3) A candidate in a House of Representatives election contravenes
14
this subsection if:
15
(a) the candidate is not endorsed by a registered political party;
16
and
17
(b) the total amount of electoral expenditure incurred:
18
(i) by or with the authority of the candidate; and
19
(ii) in relation to the election; and
20
(iii) during the expenditure cap period for the election;
21
exceeds $250,000.
22
Note:
Expenditure incurred by a candidate who is endorsed by a registered
23
political party is taken to be incurred by the party: see
24
subsection 314AAAE(1).
25
Civil penalty:
26
The higher of the following amounts:
27
(a) 200 penalty units;
28
(b) if there is sufficient evidence for the court to determine the
29
amount, or an estimate of the amount, of the excess
30
mentioned in paragraph (b) of this subsection--3 times that
31
excess.
32
Significant third parties and third parties
33
(4) A person contravenes this subsection if:
34
Capping electoral expenditure
Schedule 6
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
33
(a) the person is:
1
(i) a significant third party; or
2
(ii) a third party; and
3
(b) the total amount of electoral expenditure incurred:
4
(i) by or with the authority of the person; and
5
(ii) in relation to a House of Representatives election for a
6
particular Electoral Division; and
7
(iii) during the expenditure cap period for the election;
8
exceeds $100,000.
9
Civil penalty:
10
The higher of the following amounts:
11
(a) 200 penalty units;
12
(b) if there is sufficient evidence for the court to determine the
13
amount, or an estimate of the amount, of the excess
14
mentioned in paragraph (b) of this subsection--3 times that
15
excess.
16
(5) If the House of Representatives election is part of a general
17
election, subsection (4) only applies to electoral expenditure that is
18
for advertising or other material that:
19
(a) explicitly mentions the Electoral Division or the name of a
20
candidate in the House of Representatives election; and
21
(b) is communicated to electors in the Electoral Division; and
22
(c) is not mainly communicated to electors outside the Electoral
23
Division.
24
314AAAE Aggregating electoral expenditure
25
(1) For the purposes of this Division, expenditure incurred by or with
26
the authority of:
27
(a) a candidate in an election who is endorsed by a registered
28
political party; or
29
(b) a State Branch of a registered political party; or
30
(c) a division of a State Branch of a registered political party;
31
is taken to be incurred by the registered political party.
32
Schedule 6
Capping electoral expenditure
34
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
(2) For the purposes of this Division, expenditure incurred by or with
1
the authority of an associated entity is taken to be incurred by each
2
registered political party with which the entity is associated.
3
Persons acting in concert
4
(3) If:
5
(a) 2 or more persons act in concert to incur, or to authorise the
6
incurring of, electoral expenditure in relation to an election
7
during the capped expenditure period for the election; and
8
(b) any of those persons is:
9
(i) a registered political party; or
10
(ii) a State Branch of registered political party; or
11
(iii) a division of a State Branch of a registered political
12
party; or
13
(iv) a candidate in the election who is endorsed by a
14
registered political party; or
15
(v) an associated entity that is associated with a registered
16
political party;
17
the expenditure is taken to have been incurred by the registered
18
political party.
19
(4) If:
20
(a) 2 or more persons act in concert to incur, or to authorise the
21
incurring of, electoral expenditure in relation to an election
22
during the capped expenditure period for the election; and
23
(b) none of those persons is a person mentioned in
24
paragraph (3)(b); and
25
(c) any of those persons is a significant third party or a third
26
party;
27
the expenditure is taken to have been incurred by the significant
28
third party or the third party (or by each of those significant third
29
parties or third parties).
30
(5) For the purposes of this Division, a person
acts in concert
with
31
another person if the person acts under an agreement (whether
32
formal or informal) with the other person to campaign with the
33
object, or principal object, of:
34
(a) having a particular party or candidate elected; or
35
Capping electoral expenditure
Schedule 6
No. , 2023
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
35
(b) opposing the election of a particular party or candidate.
1
314AAAF When electoral expenditure is incurred
2
(1) For the purposes of this Division, electoral expenditure is taken to
3
be incurred when the services for which the expenditure is incurred
4
are actually provided or the goods for which the expenditure is
5
incurred are actually delivered.
6
(2) In particular:
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(a) expenditure on advertising is incurred when the advertising is
8
broadcast or published; and
9
(b) expenditure on the production and distribution of election
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material is incurred when the material is distributed; and
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(c) expenditure on the employment of staff is incurred during the
12
period of their employment; and
13
(d) expenditure of a class prescribed by the regulations is
14
incurred at the time so prescribed.
15
Schedule 7
Penalties
36
Commonwealth Electoral Amendment (Cleaning up Political
Donations) Bill 2023
No. , 2023
Schedule 7--Penalties
1
2
Commonwealth Electoral Act 1918
3
1 After subsection 384A(1)
4
Insert:
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(1A) The pecuniary penalty that a court may impose under the
6
Regulatory Powers Act on a body corporate that has contravened a
7
civil penalty provision of this Act must not be more than 5 times
8
the pecuniary penalty specified for the civil penalty provision.
9