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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021-2022
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Electoral Legislation Amendment
(Foreign Influences and Offences) Bill
2022
No. , 2022
(Finance)
A Bill for an Act to amend the law relating to
elections and referendums in respect of electoral
communication and expenditure of foreign
campaigners, and offences, and for related
purposes
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Schedules ........................................................................................... 2
Schedule 1--Foreign electoral communication and expenditure
3
Part 1--Communication authorised by foreign campaigners
3
Commonwealth Electoral Act 1918
3
Part 2--Electoral expenditure by foreign campaigners
9
Commonwealth Electoral Act 1918
9
Schedule 2--Offences
13
Commonwealth Electoral Act 1918
13
Referendum (Machinery Provisions) Act 1984
13
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
1
A Bill for an Act to amend the law relating to
1
elections and referendums in respect of electoral
2
communication and expenditure of foreign
3
campaigners, and offences, and for related
4
purposes
5
The Parliament of Australia enacts:
6
1 Short title
7
This Act is the
Electoral Legislation Amendment (Foreign
8
Influences and Offences) Act 2022
.
9
2
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Schedules
13
Legislation that is specified in a Schedule to this Act is amended or
14
repealed as set out in the applicable items in the Schedule
15
concerned, and any other item in a Schedule to this Act has effect
16
according to its terms.
17
Foreign electoral communication and expenditure
Schedule 1
Communication authorised by foreign campaigners
Part 1
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
3
Schedule 1--Foreign electoral communication
1
and expenditure
2
Part 1--Communication authorised by foreign
3
campaigners
4
Commonwealth Electoral Act 1918
5
1 Subsection 4(1)
6
Insert:
7
foreign campaigner
means a person or entity referred to in a
8
paragraph of section 287AA.
9
Note:
A person or entity referred to in a paragraph of section 287AA is also
10
a foreign donor for the purposes of Part XX.
11
2 Section 321B (definition of ancillary contravention
)
12
After "section 321D", insert "or 321DA".
13
3 Section 321B (definition of primary contravention
)
14
After "section 321D", insert "or 321DA".
15
4 At the end of subsection 321C(1)
16
Add:
17
; (d) the integrity of the electoral system, by ensuring that only
18
those with a legitimate connection to Australia are able to
19
influence Australian elections.
20
5 At the end of subsection 321C(2)
21
Add:
22
; (c) restricting the communication of electoral matter authorised
23
by foreign campaigners.
24
6 Paragraph 321C(3)(a)
25
Repeal the paragraph, substitute:
26
(a) the ability of Australians to communicate electoral matters to
27
voters; and
28
Schedule 1
Foreign electoral communication and expenditure
Part 1
Communication authorised by foreign campaigners
4
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
7 At the end of subsection 321D(3)
1
Add:
2
; or (c) if the matter is communicated in circumstances giving rise to
3
a contravention of subsection 321DA(1) (communications
4
authorised by foreign campaigners).
5
8 After section 321D
6
Insert:
7
321DA Prohibition on foreign campaigners authorising certain
8
electoral matter
9
(1) A foreign campaigner contravenes this subsection if electoral
10
matter is communicated to a person and:
11
(a) all of the following apply:
12
(i) the matter is an electoral advertisement;
13
(ii) all or part of the distribution or production of the
14
advertisement was paid for;
15
(iii) the content of the advertisement was approved by the
16
foreign campaigner (whether or not the foreign
17
campaigner paid for the distribution or production of the
18
advertisement); or
19
(b) both of the following apply:
20
(i) the matter forms part of a sticker, fridge magnet, leaflet,
21
flyer, pamphlet, notice, poster or how-to-vote card;
22
(ii) the content of the matter was approved by the foreign
23
campaigner; or
24
(c) the foreign campaigner is a disclosure entity and
25
communicates the matter, or the foreign campaigner
26
communicates the matter on behalf of a disclosure entity, and
27
the matter is not an advertisement covered by paragraph (a),
28
nor does the matter form part of a sticker, fridge magnet,
29
leaflet, flyer, pamphlet, notice, poster or how-to-vote card.
30
Civil penalty:
120 penalty units.
31
Foreign electoral communication and expenditure
Schedule 1
Communication authorised by foreign campaigners
Part 1
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
5
Exceptions
1
(2) Subsection (1) does not apply in relation to electoral matter
2
referred to in paragraphs (1)(b) and (c) if the matter forms part of:
3
(a) an opinion poll or research relating to voting intentions at an
4
election or by-election; or
5
(b) a communication communicated for personal purposes; or
6
(c) an internal communication of the foreign campaigner; or
7
(d) a communication at a meeting of 2 or more persons if the
8
identity of the person (the
speaker
) communicating at the
9
meeting, and any foreign campaigner on whose behalf the
10
speaker is communicating, can reasonably be identified by
11
the person or persons to whom the speaker is speaking; or
12
(e) a live communication of a meeting covered by paragraph (d),
13
but not any later communication of that meeting; or
14
(f) a communication communicated solely for the purpose of
15
announcing a meeting.
16
Application of civil penalty to entities that are not legal persons
17
(3) For the purposes of this Act and the Regulatory Powers Act, a
18
contravention of subsection (1) that would otherwise have been
19
committed by a foreign campaigner that is not a legal person is
20
taken to have been committed by each member, agent or officer
21
(however described) of the foreign campaigner who, acting in the
22
foreign campaigner's actual or apparent authority, engaged in the
23
conduct or made the omission constituting the contravention.
24
Note 1:
For paragraph (1)(c), matter may be communicated on behalf of a
25
disclosure entity whether or not the disclosure entity pays for the
26
communication of the matter.
27
Note 2:
Examples of matters that may be covered by this section include
28
internet advertisements, bulk text messages and bulk voice calls
29
containing electoral matter.
30
Note 3:
For the geographical application of this section, see section 321E.
31
Note 4:
For the meaning of
communicate
for carriage service providers, see
32
the definition of that term in section 321B.
33
9 Section 321E (heading)
34
Omit "
section 321D
", substitute "
sections 321D and 321DA
".
35
Schedule 1
Foreign electoral communication and expenditure
Part 1
Communication authorised by foreign campaigners
6
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
10 Subsection 321E(1)
1
Omit "contravene section 321D", substitute "contravene section 321D
2
or 321DA".
3
11 Subparagraphs 321E(1)(d)(i) and (iii)
4
Omit "section 321D", substitute "that section".
5
12 Subsection 321E(2)
6
Omit "contravene section 321D", substitute "contravene section 321D
7
or 321DA".
8
13 Paragraph 321E(2)(b)
9
Omit "section 321D", substitute "that section".
10
14 Paragraph 321E(2)(d)
11
Omit "section 321D" (wherever occurring), substitute "that section".
12
15 Subsection 321F(1)
13
Repeal the subsection, substitute:
14
(1) This section applies to a person (whether within or outside
15
Australia) if the Electoral Commissioner has reason to believe that
16
the person has information or a document that is relevant to:
17
(a) assessing compliance with section 321D; or
18
(b) investigating a possible contravention of section 321DA.
19
16 After subsection 383(2B)
20
Insert:
21
Injunctions relating to section 321DA--carriage service providers
22
(2C) Without limiting subsection (1), if:
23
(a) an injunction could be granted under subsection (1) or (2) in
24
relation to a contravention or proposed contravention by a
25
foreign campaigner of section 321DA in relation to an
26
electoral matter; and
27
(b) a carriage service provider supplies, or is to supply, a listed
28
carriage service to the foreign campaigner; and
29
Foreign electoral communication and expenditure
Schedule 1
Communication authorised by foreign campaigners
Part 1
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
7
(c) the listed carriage service is to be used solely for making
1
bulk voice calls or sending bulk text messages;
2
the Federal Court may, on the application of:
3
(d) if the conduct relates to an election--a candidate in the
4
election; or
5
(e) in any case--the Electoral Commission;
6
grant an injunction restraining the carriage service provider from
7
supplying the listed carriage service to the foreign campaigner.
8
Note:
Section 321DA prohibits the communication of certain electoral
9
matter authorised by a foreign campaigner.
10
Injunctions relating to section 321DA--broadcasters
11
(2D) Without limiting subsection (1), if an injunction could be granted
12
under subsection (1) or (2) in relation to a contravention or
13
proposed contravention by a foreign campaigner of section 321DA
14
in relation to an electoral matter, the Federal Court may, on the
15
application of:
16
(a) if the conduct relates to an election--a candidate in the
17
election; or
18
(b) in any case--the Electoral Commission;
19
grant an injunction restraining a broadcaster from broadcasting the
20
matter.
21
17 Subsection 383(3)
22
Omit "or (2B)" (wherever occurring), substitute ", (2B), (2C) or (2D)".
23
18 After subsection 383(6A)
24
Insert:
25
(6B) If an application is made to the Federal Court for the grant of an
26
injunction under subsection (2C) or (2D) restraining a carriage
27
service provider or broadcaster as referred to in that subsection, the
28
power of the Federal Court to grant the injunction may be
29
exercised:
30
(a) if the Federal Court is satisfied that the foreign campaigner
31
has contravened section 321DA--whether or not it appears to
32
the Federal Court that the foreign campaigner intends to
33
contravene or continue to contravene that section; or
34
Schedule 1
Foreign electoral communication and expenditure
Part 1
Communication authorised by foreign campaigners
8
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
(b) if it appears to the Federal Court that, in the event that an
1
injunction is not granted, it is likely that the foreign
2
campaigner will contravene section 321DA--whether or not
3
the foreign campaigner has previously contravened that
4
section.
5
19 Application of amendments
6
Section 321DA of the
Commonwealth Electoral Act 1918
, as inserted
7
by this Schedule, applies in relation to electoral matter that is
8
communicated on or after the commencement of this Schedule
9
(regardless of when the content of the matter was approved).
10
Foreign electoral communication and expenditure
Schedule 1
Electoral expenditure by foreign campaigners
Part 2
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
9
Part 2--Electoral expenditure by foreign
1
campaigners
2
Commonwealth Electoral Act 1918
3
20 Subsection 120(2) (table item 14)
4
Omit "or 302H", substitute ", 302H or 314AK".
5
21 After Division 5A of Part XX
6
Insert:
7
Division 5B--Electoral expenditure by foreign
8
campaigners
9
314AH Simplified outline of this Division
10
This Division limits electoral expenditure and fundraising for
11
electoral expenditure by foreign campaigners (that is, persons who,
12
broadly, do not have a connection with Australia).
13
Electoral expenditure incurred by or with the authority of a foreign
14
campaigner must not total $1,000 or more in a financial year.
15
Amounts fundraised for that purpose must not total $1,000 or more
16
in a financial year.
17
314AI Objects of this Division
18
(1) The objects of this Division are:
19
(a) to ensure, to the extent possible, that only Australians and
20
those with a genuine, legitimate stake in the outcomes of the
21
Australian political process are able to influence those
22
outcomes; and
23
(b) to reduce the risk of foreign persons or entities influencing
24
the results of Australian elections through electoral
25
expenditure.
26
Schedule 1
Foreign electoral communication and expenditure
Part 2
Electoral expenditure by foreign campaigners
10
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
(2) This Division aims to achieve these objects by limiting electoral
1
expenditure and fundraising for electoral expenditure by foreign
2
persons or entities that do not have a legitimate connection to
3
Australia.
4
314AJ Prohibition on foreign campaigners incurring electoral
5
expenditure or fundraising for that purpose
6
(1) A foreign campaigner contravenes this subsection if:
7
(a) amounts of electoral expenditure incurred by or with the
8
authority of the foreign campaigner in a financial year total
9
$1,000 or more; or
10
(b) amounts fundraised for the purpose of electoral expenditure
11
being incurred by or with the authority of the foreign
12
campaigner in a financial year total $1,000 or more.
13
Civil penalty:
14
The higher of the following amounts:
15
(a) 200 penalty units;
16
(b) if there is sufficient evidence for the court to determine or
17
estimate the amount of electoral expenditure incurred or
18
fundraised in contravention of this subsection--3 times that
19
amount.
20
(2) Subsection (1) applies:
21
(a) whether or not the conduct constituting the contravention of
22
that subsection occurs in Australia; and
23
(b) whether or not a result of the conduct constituting the alleged
24
contravention of that subsection occurs in Australia.
25
314AK Anti-avoidance
26
(1) The Electoral Commissioner may give a person or entity (the
27
relevant person
) a written notice if:
28
(a) the relevant person, whether alone or together with one or
29
more other persons or entities, enters into, begins to carry out
30
or carries out a scheme; and
31
Foreign electoral communication and expenditure
Schedule 1
Electoral expenditure by foreign campaigners
Part 2
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
11
(b) there are reasonable grounds to conclude that the relevant
1
person did so for the sole or dominant purpose of avoiding
2
section 314AJ prohibiting:
3
(i) an amount of electoral expenditure being incurred by or
4
with the authority of a person (whether or not the
5
relevant person) in a financial year; or
6
(ii) the fundraising of an amount for the purposes of
7
electoral expenditure being incurred by or with the
8
authority of a person (whether or not the relevant
9
person) in a financial year; and
10
(c) there are reasonable grounds to conclude that, as a result of
11
the scheme or part of the scheme, section 314AJ will not
12
prohibit the incurring of the amount of electoral expenditure
13
or the fundraising of the amount in the financial year.
14
Note:
A decision to give a notice is a reviewable decision (see section 120).
15
(2) The notice must:
16
(a) specify the conduct constituting the scheme; and
17
(b) require the relevant person:
18
(i) not to enter into the scheme; or
19
(ii) not to begin to carry out the scheme; or
20
(iii) not to continue to carry out the scheme.
21
Civil penalty
22
(3) A person or entity is liable to a civil penalty if:
23
(a) the person or entity is given a notice under subsection (1);
24
and
25
(b) the person or entity engages in conduct; and
26
(c) the conduct contravenes the notice.
27
Civil penalty:
28
The higher of the following amounts:
29
(a) 200 penalty units;
30
(b) if there is sufficient evidence for the court to determine or
31
estimate the amount that was not prohibited as a result of the
32
scheme or part of the scheme--3 times that amount.
33
Schedule 1
Foreign electoral communication and expenditure
Part 2
Electoral expenditure by foreign campaigners
12
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
No. , 2022
(4) This section applies whether or not the scheme is entered into,
1
begun to be carried out or carried out:
2
(a) in Australia; or
3
(b) outside Australia; or
4
(c) partly in Australia and partly outside Australia.
5
Meaning of scheme
6
(5) For the purposes of this section,
scheme
has the same meaning as
7
in subsection 287(1).
8
22 Application of amendments
9
Division 5B of Part XX of the
Commonwealth Electoral Act 1918
, as
10
inserted by this Schedule, applies to the financial year in which this
11
Schedule commences and later financial years in relation to an amount
12
of electoral expenditure incurred, or an amount fundraised, on or after
13
the commencement of this Schedule.
14
Offences
Schedule 2
No. , 2022
Electoral Legislation Amendment (Foreign Influences and Offences)
Bill 2022
13
Schedule 2--Offences
1
2
Commonwealth Electoral Act 1918
3
1 Subsection 287H(3)
4
After "any electoral expenditure", insert ", or fundraise any amounts for
5
the purpose of incurring electoral expenditure,".
6
2 Subsection 287H(3) (penalty)
7
After "electoral expenditure incurred", insert ", or fundraised,".
8
3 Subsection 329(4)
9
Repeal the subsection, substitute:
10
(4) A person who contravenes subsection (1) commits an offence.
11
Penalty:
12
(a) if the person is a natural person--imprisonment for 3 years or
13
100 penalty units, or both; or
14
(b) if the person is a body corporate--500 penalty units.
15
Referendum (Machinery Provisions) Act 1984
16
4 Subsection 122(4)
17
Repeal the subsection, substitute:
18
(4) A person who contravenes subsection (1) commits an offence.
19
Penalty:
20
(a) if the person is a natural person--imprisonment for 3 years or
21
100 penalty units, or both; or
22
(b) if the person is a body corporate--500 penalty units.
23