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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
COMMONWEALTH ELECTORAL AMENDMENT
(DONATIONS REFORM) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by the authority of Senator Rhiannon)
COMMONWEALTH ELECTORAL AMENDMENT
(DONATIONS REFORM) BILL 2014
OUTLINE
The Bill contains amendments to the Commonwealth Electoral Act 1918 (the Act) that will
prohibit political donations from certain industries.
The purpose of the amendments are to strengthen the integrity and accountability framework
underpinning Australia's electoral system and prevent certain industries who are a associated
with a strong public perception of record of using political donations to influence policy
decisions.
Specifically, amendments are proposed to ban donations from:
property developers;
tobacco industry business entities;
liquor business entities;
gambling industry business entities;
mineral resources or mining industry business entities; and
industry representative organisations whose majority members are those listed above.
These amendments will improve the electoral system by strengthening the regulatory framework,
enhancing individuals' capacity to take part in public life without undue influence to their
decision making capacity, and reinforcing the integrity of the electoral system, particularly from
efforts from third parties to unduly influence the process.
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the Commonwealth Electoral Amendment (Donations Reform)
Act 2014.
Clause 2 - Commencement
This clause provides for the preliminary clauses of the Bill to commence on the day it receives
the Royal Assent. Schedule 1 of the Bill is to take effect on the day following a period of 28 days
after this Act receives Royal Assent. This provides a transitional period for entities affected.
Clause 3 - Schedule(s)
This clause is the formal enabling provision for the Schedule to the Bill, providing that the Act is
amended in accordance with the applicable items of the Schedule.
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SCHEDULE 1 - AMENDMENTS
Item 1 inserts new Division 5B - Prohibited Donations after existing Division 5A of Part XX of
the Commonwealth Electoral Act 1918.
Section 314AH outlines the definitions for the following:
close associate of a corporation (including directors, officers or significant shareholders
of a corporation);
electoral expenditure;
gift;
liquor or gambling industry business entity (including businesses regularly involved in
the manufacture and sale of liquor products as well as those involved in wagering, betting
or other gambling);
mineral resources or mining industry business entity (including businesses involved in
the exploration, prospecting, discovery, development or extraction of mineral resources
or fossil fuels;
prohibited donor;
property developer (businesses involved in the making of planning applications in
connection with the residential or commercial development of land, with the ultimate
purpose of the sale or lease of the land for profit);
spouse;
stapled entity;
tobacco industry business entity (businesses engaged in the manufacture or sale of
tobacco products); and
voting power.
Section 314AJ defines a political donation as a gift made to or for the benefit of a political party,
a member of the Commonwealth Parliament, a candidate, and certain other entities. The
definition includes contributions, entry fees, and other payments relating to fundraising ventures
and events. The definition excludes personal gifts and certain other payments.
Section 314AK amends the Act to make donations by prohibited donors unlawful. It would also
be unlawful for a person to make a political donation on behalf of a prohibited donor, accept a
political donation made by a prohibited donor, or solicit another person to make a political
donation on behalf of a prohibited donor. If a person receives a gift that is unlawful under the
Act, an amount equal to the amount or value of the gift is payable by that person to the
Commonwealth.
Section 314AL outlines the offences and penalties that apply in relation to the unlawful acts in
Section 314AK.
Section 314AM Makes it an offence for person to enter into or carry out a scheme for the
purpose of circumventing the prohibitions and requirements within this Division.
Section 314AN allows for the Australian Electoral Commission to determine that a person is
presumed not to be a prohibited donor, and outlines the circumstances under which such a
determination may be made. The purpose of this is to allow entities that are not clear whether
they fall into any of the categories of prohibited donors to ask for assurance that they can legally
make political donations.
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Subsection 314AN(9) is intended as a clarification and not an exemption from the Legislative
Instruments Act 2003, as a determination under section 314AN is not a legislative instrument.
Item 2 amends the Act to include the new Subsection 314AK(6) to the list of provisions for
recovery of unlawful donations in Section 315A.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Commonwealth Electoral Amendment (Donations Reform) Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of the Bill is to specify the prohibited donors as property developers, tobacco
industry business entities, liquor business entities, gambling industry business entities, and
mineral resources or mining industry business entities. It also prohibits donations from industry
representative organisations whose majority members are prohibited donors. It outlines the
offences associated with these unlawful donations.
Human rights implications
The amendments proposed in this Bill engage the following rights under the International
Covenant on Civil and Political Rights:
the right to freedom of expression (Part III, Article 19, Section 2); and
the right to take part in public life (Part III, Article 25).
The right to freedom of expression
Under Article 19 of the International Covenant on Civil and Political Rights, everyone has the
right to freedom of expression. This right includes the freedom to seek, receive and impart
information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by
way of art, or in another way chosen by him or her.
Some have argued that a Bill to cap or prohibit political donations such as this Bill limits the
right of political parties to engage in such activities as electoral advertising and promotion, to
express their policy positions to the public, or potentially limits the right of prohibited donors to
engage in the political process.
However, there is no clear legal basis for the argument that the right to donate to a political party
is equivalent to the right to freedom of speech. Prohibited donors retain the right to public
campaign and articulate their political views on any issues they wish - they are simply prohibited
from donating monies to political parties.
These particular sectors have been singled out because of the frequent nexus between their
operations and public policy, and the strong public perception of impropriety associated with
political donations and decision making.
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The right to take part in public life
Under Article 25 of the International Covenant on Civil and Political Rights, every citizen has
the right, and is to have the opportunity, to -
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated above, the Bill only restricts the ability of prohibited donors to participate in political
debate in one way - by restricting their ability to donate to political parties. Individuals will still
be able to vote and corporations will still be able to publicly engage in the debate in every way
possible, aside from making donations to political parties.
Conclusion
This Bill is compatible with human rights because it advances equality in the protection of
freedom of expression.
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