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Electoral Legislation Amendment
Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
General
The Electoral Legislation Amendment Bill 2018 amends the Electoral
Act 2002 (Electoral Act) and the Public Administration Act 2004
(Public Administration Act).
The key reforms in the Bill include--
amending the Electoral Act to--
streamline early voting procedures and processing by--
providing that the early voting period for a
by-election is 12 days;
providing that early voting commences on the
Monday following final nomination day; and
facilitating faster processing and counting of
early, in-person votes and postal votes; and
removing the requirement to provide a reason
for voting early;
providing for online postal vote applications and
simplifying their witnessing requirements; and
allowing postal votes received after election
day to be counted based on the dates they
are witnessed and received by the Victorian
Electoral Commission (Commission), rather
than the dates they are witnessed and
postmarked;
581084 1 BILL LA INTRODUCTION 8/5/2018
provide the Speaker of the Legislative Assembly with
discretion to issue writs for by-elections close to an
election;
clarify the existing process for counting votes in
Legislative Council elections by correcting a technical
drafting error;
implement technical and operational amendments
proposed by the Commission;
establish a Victorian political donations disclosure and
reporting scheme; and
amending the Public Administration Act to provide for the
provision of Parliamentary advisers.
Clause Notes
Part 1--Preliminary
Clause 1 provides that the purposes of the Bill are--
(a) to amend the Electoral Act to--
(i) improve the operation of electoral processes; and
(ii) enhance the integrity of the electoral system by
introducing a political donations disclosure and
reporting scheme; and
(b) to amend the Public Administration Act to provide for
the provision of Parliamentary advisers.
Clause 2 sets out the commencement provisions for the Bill. Part 1, Part 3
and Part 7 of the Bill will come into operation on the day after
the day on which the Electoral Amendment Bill 2018 receives
the Royal Assent. Part 4 of the Bill will come into operation
on 1 July 2018. Part 5 and Part 6 of the Bill will come into
operation on 25 November 2018. Part 2 of the Bill will come
into operation on a day to be proclaimed or on 1 July 2018 if not
proclaimed before that date.
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Part 2--General amendments
Clause 3 amends section 3 of the Electoral Act.
Subclause (1) amends the definition of authorised witness to
mean a person who--
(a) has attained 18 years of age; and
(b) is not a candidate at the election.
Subclause (2) inserts a new definition of composite name, to
mean a name formed from the names of more than one registered
political party.
Clause 4 amends section 9 of the Electoral Act by inserting a new
subsection 9(3) which gives the Commission the power, subject
to the Electoral Act, to make, issue and publish determinations
for or in connection with the performance of its responsibilities
and functions and the exercise of its powers.
Clause 5 makes a consequential amendment to section 22 of the Electoral
Act so that it refers to section 94A of the Commonwealth
Electoral Act 1918. This amendment is required because of the
amendment made by clause 7 of the Bill to section 24 of the
Electoral Act.
Clause 6 substitutes section 23(3) of the Electoral Act to provide that a
claim for enrolment under section 23(1) or section 23(2) must be
accompanied by one of the following forms of identification--
(a) if the person completing the claim is the holder of a driver
licence or learner permit under the law of Victoria or
another State or a Territory of the Commonwealth, the
number of the driver licence or learner permit;
(b) if the person completing the claim is the holder of an
Australian passport issued under the Australian Passports
Act 2005 of the Commonwealth, the number of the
Australian passport;
(c) an attestation as to the identity of the person completing
the claim that is--
(i) in the prescribed form; and
(ii) signed by an elector;
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(d) any other form of evidence of identity that is prescribed
by the regulations for the purposes of section 23(3).
Clause 7 inserts a new section 24(1)(aa) into the Electoral Act to allow an
elector who is entitled to be treated as an eligible overseas elector
under section 94, 94A or 95 of the Commonwealth Electoral
Act 1918 to apply to the Commission to be a general postal voter.
Clause 8 amends section 45 of the Electoral Act.
Subclause (1) inserts a new section 45(1A) into the Electoral Act
to provide that an application for the registration of a political
party cannot be made during the period commencing 120 days
before the day of a general election resulting from the expiration
of the Assembly.
Subclause (2) inserts a new section 45(3) and 45(4) into the
Electoral Act to provide that an application for the registration
of an eligible political party may include a request that the
Commission enter a logo submitted in relation to the political
party in the Register of Political Parties for the printing of
ballot-papers in accordance with section 74.
An application is required to include--
(a) a copy of the logo as a black and white image in a format
determined by the Commission; and
(b) a declaration that the use of the logo will not infringe the
intellectual property rights of any person; and
(c) any other requirements as determined by the Commission.
Clause 9 amends section 46 of the Electoral Act and its heading.
Subclause (1) amends the heading to section 46 to refer to a logo.
Subclause (2) includes in section 46(a)(ii) a requirement that the
Commission must not register a logo in relation to an eligible
political party during an election.
Clause 10 inserts a new section 47A into the Electoral Act to provide that
the Commission must refuse an application under section 45(3)
to enter a logo in relation to a political party in the Register of
Political Parties if, in the opinion of the Commission, the logo
that the political party wishes to use for the purposes of this
Act--
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(a) is obscene; or
(b) is the logo of another registered political party; or
(c) so nearly resembles the logo of another registered
political party that it is likely to be confused with,
or mistaken for, that logo; or
(d) comprises the words "Independent Party" or comprises
or contains the word "Independent" and--
(i) the name, or an abbreviation or acronym of the
name, of a registered political party; or
(ii) matter that so nearly resembles the name, or
an abbreviation or acronym of the name, of a
registered political party, that the matter is likely
to be confused with, or mistaken for, that name,
abbreviation or acronym.
Clause 11 amends section 48 of the Electoral Act.
Subclause (1) amends section 48(1) so that it requires the
Commission to give the political party written notice of
its opinion within 30 days of receiving an application for
registration from that political party.
Subclause (2) reduces the time by which a political party must
respond to the Commission's notice under section 48(1) from
45 days to 30 days.
Subclause (2) also amends the time by which an application is
deemed to have been withdrawn. An application is deemed to
be withdrawn if the Commission does not receive a response
from a political party within 30 days after the Commission
provided its notice under section 48(1). Previously that time
period was 45 days.
The amendments to section 48 acquit the Government's response
to the Electoral Matters Committee's (EMC) recommendation 18
in its Report of the Inquiry into the Conduct of the 2014
Victorian State election (2014 Report) to--
(a) clarify and strengthen the process for registering a
political party; and
(b) impose a strict limit on the amount of time an applicant
has to meet the registration requirements.
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Clause 12 inserts a new section 49(1A) into the Electoral Act to provide
that a notice by the Commission under section 49(1) in relation
to an application must be published--
(a) within 30 days of receiving the application if the
Commission has decided that it is required to consider
accepting the application; or
(b) within 14 days of receiving a written request from a
political party under section 48(3).
Clause 13 inserts a new section 50(1)(ia) into the Electoral Act to provide
that if the Commission determines that a political party may be
registered, the Commission must register the political party by
entering in the Register of Political Parties, if the application
included a request under section 45(3), the logo in relation to
that political party.
Clause 14 amends section 51 of the Electoral Act.
Subclause (1) inserts a new section 51(1)(aa) and (ab) into the
Electoral Act to provide that a registered political party may
apply to the Commission for a change to the Register of Political
Parties by--
(aa) if a logo is entered in the Register in relation to the
political party, changing the logo to a logo submitted
in the application; or
(ab) if a logo is not entered in the Register in relation to
the political party, entering the logo submitted in the
application in the Register in relation to the political
party.
Subclause (2) inserts a new section 51(1A) in the Electoral Act
to provide that an application under section 51(1) to amend the
Register to change the name of a political party or to enter a logo
cannot be made during the period commencing 120 days before
the day of a general election resulting from the expiration of the
Assembly.
Subclause (3) inserts a new section 51(2A) in the Electoral Act
to provide that an application to change or enter a logo in the
Register must include--
(a) a copy of the logo as a black and white image in a format
determined by the Commission; and
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(b) a declaration that the use of the logo will not infringe the
intellectual property rights of any person; and
(c) any other requirements determined by the Commission.
Subclause (4) inserts a new section 51(3A) in the Electoral Act
to provide that in the case of an application under subsection
(1)(aa) or (ab), sections 46, 47A, 48 and 49 apply in relation to
the application as if in those sections a reference to an application
under section 45 were a reference to an application under section
51(1)(aa) or (ab).
Clause 15 amends section 61 of the Electoral Act.
Subclause (1) qualifies the timeframe for issuing a writ
for a by-election by the Speaker, with a reference to new
section 61(2A).
Subclause (2) inserts a new section 61(2A) to provide that the
Speaker may decide not to issue a writ for a by-election if the
vacancy occurs on or after 30 June in the year in which a general
election resulting from the expiration of the Assembly is to be
held.
Subclause (3) qualifies the timeframe for issuing a writ
for a by-election by the Governor, with a reference to new
section 61(3A).
Subclause (4) inserts a new section 61(3A) to provide that the
Governor may decide not to issue a writ for a by-election if the
vacancy occurs on or after 30 June in the year in which a general
election resulting from the expiration of the Assembly is to be
held.
The amendments to section 61 will help avoid unnecessary
by-elections, reduce administrative burdens on the Commission
and avoid voters voting twice within a short period and is
consistent with the EMC's recommendation 8.2 in its Report into
the 2010 State election (tabled on 23 May 2012) (2010 Report)
and the Government Response (tabled on 15 November 2012).
Clause 16 amends section 74 of the Electoral Act by inserting a new
section 74(5) relating to the printing of logos on ballot-papers.
New section 74(5) provides that if a person has been endorsed as
a candidate in an election by a registered political party that has a
logo entered in the Register of Political Parties, the logo must be
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printed adjacent to the name of the candidate and beneath the
square in relation to the group in accordance with Schedule 1A,
1B or 2, whichever is applicable.
Clause 17 substitutes the how-to-vote cards requirements in section 78(3) of
the Electoral Act to provide that a how-to-vote card must be--
(a) a single how-to-vote card, that is, a how-to-vote card
submitted with respect to one electoral district or one
electoral region only; or
(b) a multiple how-to-vote card, that is, a how-to-vote card
submitted with respect to no less than every electoral
district or electoral region for which the registered
political party submitting the how-to-vote card has
endorsed a candidate; or
(c) a combined how-to-vote card, that is, a how-to-vote card
submitted with respect to one or more electoral districts
or electoral regions for which the registered political party
submitting the how-to-vote card has endorsed a candidate.
This amendment acquits the Government's response to the EMC's
recommendation 18 in its 2014 Report. The amendment
goes further than the EMC recommendation, which only
recommended single authorisation messages for how-to-vote
cards at joint voting centres.
Simplifying the requirements for all how-to-vote cards will
promote greater transparency for voters and is consistent with
Commonwealth how-to-vote cards requirements.
Clause 18 substitutes section 79(2)(d) of the Electoral Act to provide
that in determining whether to register a how-to-vote card the
Commission must consider that the how-to-vote card contains
on at least one printed side of the card--
(i) the name and address of the person who authorised the
card; and
(ii) the name and place of business of the printer or publisher
of the card.
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Clause 19 substitutes section 80(4)(d)) of the Electoral Act to provide
that in determining whether to register an amended version
of a how-to-vote card the Commission must consider that
the how-to-vote card contains on at least one printed side of
the card--
(i) the name and address of the person who authorised the
card; and
(ii) the name and place of business of the printer or publisher
of the card.
Clause 20 amends section 83 of the Electoral Act.
Subclause (1) allows the name and address of the person
authorising an electoral advertisement, handbill, pamphlet or
notice to appear anywhere on the electoral advertisement
handbill, pamphlet or notice printed, published or distributed.
Subclause (2) inserts a new section 83(3)(aa). A how-to-vote
card registered under section 79 or 80 of the Electoral Act is
not required to comply with the authorisation requirements
under section 83(1).
Clause 21 inserts a new section 83A into the Electoral Act.
New section 83A provides that it is an offence to publish
a how-to-vote card that does not contain the authorisation
information required by section 79(2)(d) or 80(4)(d). A person
who makes copies for distribution of a how-to- vote card that
is published on the Internet is deemed to be the printer of those
copies. The penalty for this offence is 10 penalty units in the
case of a natural person and 50 penalty units in the case of a body
corporate.
Clause 22 repeals section 98 of the Electoral Act. It is no longer a
requirement for a person wishing to make an application to vote
early to make a declaration (orally or in writing) about his or her
inability to attend an election day voting centre during the hours
of voting on election day.
Clause 23 amends section 99 of the Electoral Act to provide that an elector
may apply to early vote at an election that is not a by-election
within the period that--
(a) starts at 9 a.m. on the Monday after the final nomination
day; and
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(b) ends at 6 p.m. on the day immediately before election
day.
This amendment to section 99(1) acquits the Government's
response to the EMC's recommendation 4 in its 2014 Report.
As recommended by the EMC, the Bill provides that early
voting commences at 9.00 am of the Monday after the final
nomination day to allow the Commission sufficient time to
receive nominations from candidates and distribute ballot
papers before election day.
Subclause (3) inserts a new section 99(1A) to provide that an
elector may apply to early vote at a by-election within the period
that--
(a) starts at 9 a.m. on the Monday after the final nomination
day; and
(b) ends at 6 p.m. on the day immediately before the election
day.
New section 99(1A) will acquit the Government's response to the
EMC's recommendation 2 in its 2014 Report. Fixing the early
voting period for by-elections to 12 days prior to a by-election--
(a) promotes consistency with the practice for general
elections, which also have a 12-day early voting period;
and
(b) gives voters who cannot attend a polling place on
election day a reasonable opportunity to vote early
while addressing the adverse issues associated with
lengthy early voting periods.
Subclause (4) inserts a new section 99(3) to provide that there
must be kept at an early voting centre--
(a) a ballot-box for the deposit of ballot-papers marked by
an elector who is enrolled in the district where the early
voting centre is located; and
(b) a ballot-box for the deposit of ballot-papers marked by
an elector who is enrolled in a district outside the district
where the early voting centre is located; and
(c) a ballot-box for the deposit of ballot-papers marked by
an elector under this section that are declaration votes.
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Clause 24 amends section 101 of the Electoral Act to allow an application
for a postal vote to be made in writing or by electronic means.
Subclause (2) inserts a new section 101(2A) to provide that an
application for postal vote made by electronic means--
(a) must be in the prescribed form; and
(b) must contain information to enable the Commission to
verify the elector in accordance with any verification
process determined by the Commission.
Subclause (3) amends section 101(3) of the Electoral Act to
refer to new section 101(2A).
Subclause (4) amends section 101(4) of the Electoral Act to
provide that the Commission must not consider an application
to vote by post (whether the application is made by electronic
means or by mail) if it is received by the Commission after 6 p.m.
on the Wednesday immediately before election day.
Clause 25 amends section 102 of the Electoral Act to remove the words
"the title or capacity in respect of which the authorised witness
acts and", leaving the witness to provide only their name,
signature and the date of signature.
This amendment acquits the Government's response to the EMC's
recommendation 8 in its 2014 Report. The requirement to add
the title or capacity under which an authorised witness acts has
proven confusing and, according to the Commission, is not
required information by them to process an application to vote
by post.
Clause 26 repeals section 103 of the Electoral Act. Section 103 is
no longer required as the amendment made by clause 25 to
section 102 provides alternative arrangements for overseas
electors who may not have had ready access to a witness
who was enrolled on the State register. Further, the change
in definition of an authorised witness in section 3 (clause 3)
simplifies who can witness declarations for overseas electors.
Clause 27 amends section 104 of the Electoral Act.
Subclause (1) amends section 104(1) to reference section 101(2).
This is consequential to the amendment made by clause 24 to
section 101.
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Subclause (2) inserts a new section 104(1A) to provide that
if the Commission receives an application to vote by post
in accordance with section 101(2A) and is satisfied that the
application contains information to enable the Commission
to verify the identity of the elector in accordance with the
verification process determined by the Commission, the
Commission must--
(a) deliver or post to the applicant--
(i) a declaration in the prescribed form; and
(ii) a ballot-paper; and
(b) record the name of the elector to whom the declaration
and ballot-paper has been issued and the date of issuing.
Subclause (3) amends section 104(2)(a) to refer to section 101(2)
and 101(2A). This is consequential to the amendment
made by clause 24 to section 101 and the insertion of new
section 101(2A).
Subclause (4) amends section 104(2)(b) to bring forward
the deadline for receipt of postal vote applications by the
Commission to 6 p.m. on the Wednesday (rather than the
Thursday) immediately before election day.
Clause 28 amends section 106 of the Electoral Act.
Subclause (1) amends section 106(2)(c)(ii) to remove the words
"the title under which the authorised witness acts and", leaving
the witness to provide only their name, signature and the date of
signature.
Subclause (2) amends section 106(2)(d) to remove the words
", fold the ballot-paper, place it and the declaration in the
envelope provided by the Commission and fasten the envelope".
Subclause (3) substitutes section 106(2)(e) to provide that the
elector must then--
(a) post the declaration and ballot-paper to the Commission
before 6 p.m. on election day; or
(b) deliver the declaration and ballot-paper to the
Commission or an election official at a voting
centre before 6 p.m. on election day.
12
Subclause (4) substitutes section 106(3) to provide that a
ballot-paper is taken to have been posted before 6 p.m. on
election day if--
(a) received by the Commission by 6 p.m. on or before
the Friday immediately after election day (regardless
of whether the enveloped is postmarked or not); and
(b) the declaration is witnessed on or before election day.
The amendments to section 106 acquit the Government's
response to the EMC's recommendation 9 in its 2014 Report.
Clause 29 substitutes the reference to "Act" with "Part" in section 107
of the Electoral Act so that a silent elector is not required
to provide the address for which they are enrolled on any
application or declaration under Part 6 of the Electoral Act.
Clause 30 makes a statute law revision to section 109(8)(a) of the Electoral
Act to substitute "province" with "region". The Electoral Act
refers to regions and not provinces. The reference to province
was not picked up at the time of the amendments made to the
Electoral Act by the Constitution (Parliamentary Reform)
Act 2003.
Clause 31 inserts a new section 110J into the Electoral Act to apply to
the early processing of votes under sections 99 (early voting
centre ballot-papers) and 106 (postal vote ballot-papers).
Section 110J(2) provides that the processing of ballot-papers
must be conducted--
(a) during the authorised period; and
(b) within a restricted area; and
(c) in accordance with the regulations; and
(d) in accordance with any instructions in relation to secrecy
determined by the Commission.
Section 110J(3) provides that an election manager or election
official cannot conduct any processing of ballot-papers unless the
election manager or election official has given written notice to
each registered political party and each candidate whose name is
printed on the ballot-papers specifying--
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(a) the authorised period; and
(b) the location of the restricted area.
Section 110J(4) makes it an offence for a person to enter the
restricted area with any device that could be used to convey or
transmit any information to a person or device located outside the
restricted area. The penalty for this offence is 600 penalty units.
Section 110J(5) makes it an offence for a person to disclose or
otherwise use information obtained during the processing of
ballot-papers for any purpose other than the conducting of the
processing. The penalty for this offence is--
(a) 600 penalty units in the case of a natural person; and
(b) 3000 penalty units in the case of a body corporate or
registered political party.
Section 110J(6) inserts a definition of authorised period and
restricted area for the purposes of this section.
New section 110J is consistent with--
(a) the EMC's recommendation 3 in its 2014 Report that
all early, in-person "home" votes be counted on election
night; and
(b) the approach at the Commonwealth level of separating
pre-poll ordinary votes from pre-poll declaration votes.
Clause 32 repeals section 111(4) of the Electoral Act to remove the
requirement that a declaration vote received by the election
manager more than 9 days after election day must be disallowed.
Clause 33 inserts a new section 112(1A) into the Electoral Act to clarify
that a ballot-paper that has been reproduced by hand by an
electoral official at a voting centre is a valid ballot-paper if that
ballot-paper does not have printed on it the logo of a registered
political party entered in the Register of Political Parties or
composite name. This clarification is required because the
Commission routinely provides blank ballot-papers to election
officials to use in the event that they run out of ballot papers
before additional printed stock can be provided.
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Clause 34 substitutes section 114A(28)(c) of the Electoral Act to clarify
that a separate transfer is constituted by a transfer in accordance
with subsection 12(b) of all votes of an excluded candidate/s as
the case may be, at a particular transfer value.
This amendment acquits the Government's response to the EMC's
recommendation 8.1 in its 2010 Report.
Clause 35 amends section 158 of the Electoral Act.
Subclause (1) substitutes section 158(1) to provide that
section 158 applies during the hours of voting in respect
of a voting centre--
(a) within 6 metres of the entrance of, or within the building
used as, a voting centre; or
(b) if the Commission considers that it is practically
necessary to do so for a voting centre specified by the
Commission by a notice displayed at the entrance to
the voting centre, within a distance determined by the
Commission that is less than 6 metres of the entrance of,
or within the building used as, the specified voting centre.
An example of when the Commission may determine that it is
practically necessary to determine a shorter distance is provided.
Subclause (2) inserts a new section 158(4) to provide that the
exhibition prohibition in section 158(2)(e) does not apply to--
(a) a car sticker, an item of clothing (when worn), lapel
button, lapel badge, fridge magnet, pen or pencil; or
(b) any other thing or item or class of thing or item prescribed
by the regulations.
Section 158(2)(e) makes it an offence for a person to exhibit
any notice or sign (other than an official notice) relating to the
election.
Subclause (2) also inserts a new section 158(5) to empower an
election manager or election official to remove, or cause to be
removed, any notice or sign that the election manager or election
official considers is being exhibited in contravention of section
158(2).
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Clause 36 inserts a new section 158A into the Electoral Act.
Section 158A applies during the hours of voting in respect of a
voting centre, within 100 metres of any entrance to the voting
centre, including any entrance to the grounds of the voting centre
but excluding any premises used as a private residence that is
located within 100 metres of any entrance to the voting centre.
Section 158A(2) makes it an offence for a person to display a
notice or sign of any size (other than an official notice) relating to
the election, within 100 metres of the entrance of a voting centre,
except as provided in section 158A(3). The penalty is 5 penalty
units.
Section 158A(3) allows a candidate, registered political party or
organisation to display one sign not exceeding--
(a) 600 millimetres by 900 millimetres; or
(b) if another size is prescribed by the regulations, the
prescribed size--
at each designated entrance to the grounds in which the voting
centre is situated.
Section 158A(2) does not apply to--
(a) a car sticker, an item of clothing (when worn), lapel
button, lapel badge, fridge magnet, pen or pencil; or
(b) any other thing or item or class of thing or item prescribed
by the regulations.
Section 158A(5) inserts a definition of designated entrance for
the purposes of section 158A.
Section 158A(6) empowers an election manager or election
official to remove, or cause to be removed, any notice or sign that
the election manager or election official considers is being
exhibited in contravention of section 158A(2).
Clause 37 makes consequential amendments to section 179A of the
Electoral Act necessary because of the amendments made by
the Bill with the insertion of new sections 83A, 110J(5) and
158A(2)--offence provisions relating to bodies corporate--
into the Electoral Act.
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Clause 38 makes consequential amendments to the forms of the
ballot-papers in Schedule 1A, Schedule 1B and Schedule 2
to the Electoral Act. The forms are amended to refer to
any logo registered in relation to a registered political party.
In relation to the forms in Schedule 1A and 1B, the forms are
amended to provide for the inclusion of any logos in relation
to the registered political parties forming a composite name.
Part 3--Amendments relating to prohibited political donations
and powers of the Commission
Clause 39 makes a consequential amendment to the heading of Part 12 of
the Electoral Act to refer to political donations.
Clause 40 amends section 206 of the Electoral Act.
Subclause (1) inserts new definitions for associated entity,
Australian resident, candidate, compliance officer, donor,
elected member, entity, financial institution, group, loan,
nominated entity, non-financial loan, political expenditure,
Register of Nominated Entities, relevant business number,
and third party campaigner in section 206(1).
Subclause (2) amends various definitions in the Electoral Act
including--
disposition of property which is defined to also include the
making of a loan or a non-financial loan or the forbearance
of any loan or non-financial loan.
gift which is defined to mean any disposition of property made
by a person to another person, without consideration, or with
inadequate consideration.
A gift includes the provision of a service, payment of an amount
in respect of a guarantee, fundraising contributions and the
disposition of property between branches of the same registered
political party or associated entity.
A gift does not include annual subscription fees, affiliation fees,
levies, dispositions made by will, volunteer labour, or gifts made
in a private capacity to an individual for their personal use that
will not be used solely or substantially for an election.
Also, a gift does not include the provision of labour shared
between branches of the same registered political party, the
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same associated entity or the same third party campaigner.
If this provision of labour between branches includes the
provision of an asset or piece of equipment to be used by the
person in providing their labour, the asset or piece of equipment
will also be excluded from the meaning of gift.
For example--
If a person is shared from the first branch of a registered
political party, associated entity or third party
campaigner to another branch of the registered political
party, associated entity or third party campaigner and
brings with them a mobile phone supplied by the first
branch of the registered political party, associated entity
or third party campaigner to use while providing their
labour, the provision of the mobile phone is not a gift.
If a person is shared from the first branch of a registered
political party, associated entity or third party
campaigner to another branch of the registered political
party, associated entity or third party campaigner and
provides their labour from an office supplied by the first
branch of the registered political party, associated entity
or third party campaigner, the provision of the office is
not a gift.
Furthermore, the definition of gift does not include gifts
between a nominated entity and its registered political party.
This exception acknowledges the existing arrangements between
political parties and separate entities that manage financial
commitments and maintain assets for the sole benefit of the
registered political party.
political donation which is defined to mean a gift to--
a registered political party, candidate at an election,
group, elected member, or nominated entity of a
registered political party; or
an associated entity or third party campaigner if the
whole or part of the gift is used, or intended to be
used, to make a political donation or incur political
expenditure, or reimburse the associated entity or
third party campaigner for making a political donation
or incurring political expenditure.
18
It is intended that gifts to associated entities and third party
campaigners for the purpose of general issues advertising and
awareness raising will not be considered political donations, if
the gift is not for the dominant purpose of directing how a person
should vote at an election by promoting or opposing a candidate
or party. This will ensure the right of donors to be active in
social issues, including by giving gifts to organisations that
support these issues, without being subject to the limitations
provided under the scheme. It will also ensure that third party
campaigners are not subject to onerous reporting obligations due
to activities that are not for the dominant purpose of directing
how a person should vote at an election by promoting or
opposing a candidate or registered political party.
Subclause (3) inserts a new subsection 206(1A) in the Electoral
Act to provide that the value of any non-monetary gift is to be
determined in accordance with principles prescribed in the
regulations.
Clause 41 inserts new Division 3A titled Prohibited Political Donations
into the Electoral Act. The purpose of the new Division is to
determine in what circumstances it is unlawful to make a political
donation.
New section 217A provides a ban on political donations from
foreign sources, by making it unlawful for a registered political
party, candidate, group, elected member, nominated entity,
associated entity, or third party campaigner to accept a political
donation, or for a donor to make a political donation, unless the
donor is--
an Australian resident or Australian citizen (if a natural
person); or
has a relevant business number (if not a natural person).
This is to address public concerns about the influence of
foreign donations on political processes and Government
decision making more generally.
New section 217B provides a cap on anonymous donations,
by making it unlawful for a registered political party, candidate,
group, elected member, nominated entity, associated entity, or
third party campaigner to accept a political donation, or for a
donor to make a political donation, equal to or above $1000
unless--
19
when the donation is made, the donor provides their
name and address; and
the recipient has no reason to believe that the name or
address is false.
This is to address public concerns about the transparency of the
source of donations and the actual or perceived influence of on
the decision making of Government and Members of Parliament.
New section 217C provides that a political donation accepted in
contravention of Division 3A is forfeited to the State, and may
be recovered from the person or entity that accepted the political
donation.
Clause 42 inserts new section 218(5A) in the Electoral Act that makes
it an offence for a person to knowingly make or accept an
unlawful political donation. A political donation is unlawful
if it contravenes Division 3A. The penalty for this offence is
300 penalty units or 2 years imprisonment or both.
Clause 43 inserts new Division 4A into the Electoral Act titled Powers of
the Commission. The purpose of the new Division is to provide
the Commission with the powers required to monitor and enforce
the political donations disclosure and reporting regime and to
maintain the Register of Nominated Entities to provide for the
appointment of nominated entities.
New section 222A gives the Commissioner the power to appoint
compliance officers for the purposes of Part 12.
New section 222B gives compliance officers the power to issue
notices.
Section 222B(1) gives compliance officers the power to issue a
notice in accordance with subsection (3) to a registered political
party, candidate, group, elected member, nominated entity,
associated entity or third party campaigner requiring--
documents or other things specified in the notice to be
produced;
an appearance before the compliance officer to give
either written or verbal evidence or produce the
documents or other things specified in the notice.
Section 222B(2) provides compliance officers with similar
notice giving powers as provided under subsection (1) in
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relation to any person that the compliance officer has reasonable
grounds to believe is capable of producing evidence in relation
to a contravention, or possible contravention, of Part 12.
New section 222C provides a mechanism to review a decision by
a compliance officer to issue a notice.
Section 222C(1) provides a person who is served with a notice
the opportunity to request a review of the decision by the
Commission.
Section 222C(2) requires the request for a review to be lodged in
writing with the Commission within 14 days of the notice being
received.
Section 222C(3) outlines the manner in which the Commission
must conduct the review.
Section 222C(4) ensures that, if a person has requested a review,
that person is not taken to have refused or failed to comply with
a notice before the Commission has notified the person of its
decision.
New section 222D outlines the offences in relation to notices
issued under new section 222B.
Section 222D(1) makes it an offence for a person to refuse to
comply with a notice. The penalty for this offence is 200 penalty
units.
Section 222D(2) makes it an offence for a person to give
evidence that is false or misleading. The penalty for this offence
is 200 penalty units.
New section 222E provides that the Commission must establish
and maintain the Register of Nominated Entities, and publish it
on the Commission's Internet site.
New section 222F provides for the nomination and eligibility for
an entity to be appointed as a nominated entity.
Section 222F(1) provides for a registered political party to
appoint an entity as its nominated entity.
Section 222F(2) specifies the conditions an entity must satisfy
in order to be eligible to be appointed as a nominated entity.
An entity will be eligible to be appointed as the nominated entity
of a registered political party if it is an incorporated body that--
21
is controlled by the registered political party; and
operates, is established and maintained, or is the trustee
of a trust established and maintained, for the sole benefit
of the members of the registered political party; and
does not have voting rights in the registered political
party.
Control is to have the same meaning as provided in
section 50AA of the Commonwealth Corporations Act 2001.
Section 222F(3) specifies the conditions that will render an entity
ineligible to be a nominated entity. An entity is not eligible to be
appointed as the nominated entity of a registered political party
if--
the entity is currently the nominated entity of another
registered political party;
the entity or an officer of the entity has been convicted
of an offence under Part 12 of the Electoral Act;
the registered political party currently has an
appointment of a nominated entity in force, meaning
that a registered political party may only appoint one
entity as its nominated entity at a time.
An officer is to have the same meaning as provided in section 9
of the Commonwealth Corporations Act 2001.
New section 222G provides a process to appoint an entity as a
nominated entity.
Section 222G(1) provides that a registered political party may
appoint a nominated entity by providing written notice of the
appointment to the Commission in the form and manner
determined by the Commission. The notice must specify the
name and address of both the registered political party and
the entity being appointed, and such other information as
determined by the Commission.
Section 222G(2) provides that the entity being appointed as a
nominated entity must provide the Commission with written
notice that the entity consents to the appointment, and a duly
executed declaration that the entity is eligible to be appointed.
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New section 222H provides for when the appointment of an
entity as a nominated entity takes effect.
Section 222H(1) requires the Commission to enter the name and
address of an entity on the Register of Nominated Entities as the
nominated entity of a registered political party, if--
the registered political party has provide written notice
of the appointment;
the entity has provided written notice that it consents to
the appointment and is eligible to be appointed; and
the Commission is satisfied that the entity is eligible to
be appointed.
Section 222H(2) specifies that the appointment of an entity as the
nominated entity of a registered political party takes effect when
the Commission enters the name and address of the entity, and
the relevant registered political party, on the Register of
Nominated Entities.
Section 222H(3) provides that the Commission may request that
an entity provides the Commission with any evidence it requires
to satisfy itself that the entity is eligible to be appointed as the
nominated entity for a registered political party.
New section 222I provides for when the appointment of an entity
as a nominated entity ceases.
Section 222I(1) specifies that the appointment of an entity as
the nominated entity of a registered political party ceases if the
Commission removes the name and address of the entity from
the Register of Nominated Entities.
Section 222I(2) specifies when the Commission may remove the
name of an entity from the Register of Entities. The Commission
may only remove the name of an entity if--
the entity provides the Commission with written notice
that the entity has resigned as the nominated entity, or
is no longer eligible to be the nominated entity; or
the registered political party that appointed the entity
provides the Commission with written notice revoking
the appointment; or
23
the entity, or an officer of the entity, is convicted of an
offence against Part 12 of the Electoral Act, or Part XX
of the Commonwealth Electoral Act 1918.
Section 222I(3) requires a nominated entity, that ceases to be
eligible to be a nominated entity of a registered political party,
to provide written notice to the Commission within 7 days of
ceasing to be eligible.
Part 4--Amendments relating to Register of Agents,
State campaign accounts and administrative funding
Clause 44 amends section 206(1) of the Electoral Act to insert new
definitions for election quarter, Register of Agents, registered
agent, registered officer, small contribution, and State
campaign account.
Clause 45 inserts new Divisions 1A and 1B in Part 12 of the Electoral Act.
The purpose of new Division 1A is to provide clarity regarding
who is responsible for compliance with Part 12 of the Electoral
Act and sets out the Commission's responsibility to maintain a
Register of Agents.
New section 207A provides that the Commission must establish
and maintain a Register of Agents. For the purpose of Part 12
of the Electoral Act, a registered agent has similar roles and
functions to a Registered Officer of a registered political party.
New section 207B sets out the appointment process of an agent
by a candidate at an election, group or elected member in relation
to an election.
Section 207B(1) provides that a candidate at an election may
appoint a person to be their agent.
Section 207B(2) provides that the members of a group may
jointly appoint a person to be their agent.
Section 207B(3) provides that an elected member may appoint a
person to be their agent.
Section 207B(4) provides that, despite subsections (1), (2), and
(3), the registered officer of a registered political party will be
taken to be the agent of a candidate, group or elected member,
if--
24
the registered political party has endorsed the candidate;
or
all the members of a group are members of the same
registered political party; or
an elected member is a member of the registered
political party.
This is to ensure that the registered officer of a registered
political party is responsible for those candidates, groups or
elected members who are endorsed by, or are members of, the
registered political party.
Section 207B(5), (6) and (7) provides a default position for who
will be taken to be the agent of a candidate, group or elected
member, if the candidate, group or elected member has not
appointed an agent.
New section 207C sets out the appointment process of an agent
by an associated entity, third party campaigner or nominated
entity.
Sections 207C(1) and (2) provide that an associated entity may
appoint an agent, however if an agent is not appointed, the
financial controller of the associated entity will be taken to be
the agent.
Sections 207C(3) and (4) provide that a third party campaigner
may appoint an agent, however if an agent is not appointed--
if the third party campaigner is a natural person, the
third party campaigner is taken to be the agent; or
in any other case, the financial controller of the third
party campaigner is taken to be the agent.
Section 207C(5) provides that, if a registered political party has a
nominated entity, the registered officer of the registered political
party is taken to be the agent of the nominated entity.
Section 207C(6) inserts a definition of financial controller for
this section.
New section 207D sets out the appointment requirements for an
agent.
Section 207D(1) provides that an appointment will have no effect
unless the person has attained the age of 18 years, the appointor
25
has given to the Commission written notice of the appointment in
the specified form and manner, and the person being appointed
has provided the Commission with their consent and a
declaration stating they are eligible for appointment.
Section 207D(2) provides a person is not eligible to be appointed
if they have been convicted of an offence under Part 12 of the
Electoral Act, or under Part XX of the Commonwealth Electoral
Act 1918.
New section 207E sets out when the appointment of an agent is
in effect.
Section 207E(1) provides that the appointment of a person as a
registered agent takes effect when the Commission enters the
name and address of the person on the Register of Agents.
Section 207E(2) provides that a person ceases to be a registered
agent when the Commission removes the name and address of
the person from the Register of Agents.
Section 207E(3) provides when the Commission may remove the
name and address of a person from the Register of Agents.
Section 207E(4) provides for what is required to occur when a
registered agent dies.
Section 207E(5) requires a person or entity who appointed a
registered agent to notify the Commission within a stipulated
timeframe if the registered agent is convicted of an offence under
Part 12 of the Electoral Act or Part XX of the Commonwealth
Electoral Act 1918.
New Division 1B deals with the State campaign account and
the obligations of registered officers and registered agents
in relation to the account. The purpose of a State campaign
account is to separate political donations from the funds used
for administration, operations, Federal elections, or other
activities, particularly the non-political campaigns of third
party campaigners.
Section 207F(1) provides that the registered officer of a
registered political party and the registered agent of a candidate,
group, elected member, nominated entity, associated entity or
third party campaigner must keep a separate account with an
ADI for the purpose of State elections. An ADI is defined in
section 38 of the Interpretation of Legislation Act 1994 to
26
mean an authorised deposit-taking institution within the meaning
of the Banking Act 1959 of the Commonwealth.
Section 207F(2) requires each political donation received under
Division 3 to be paid into the State campaign account.
Section 207F(3) provides that any amount kept in any account for
Commonwealth electoral purposes must not be paid into the State
campaign account.
Section 207F(4) provides that annual subscription fees, affiliation
fees and levies received by a registered political party must not
be paid into the State campaign account.
Section 207F(5) provides that annual subscription fees and
annual levies received by an associated entity or third party
campaigner, must not be paid into the State campaign account.
Section 207F(6) requires that all political expenditure must be
paid from the State campaign account.
Section 207F(7) provides that regulations may prescribe other
amounts of any kind that may be paid, or must not be paid, into
a State campaign account.
Section 207F(8) sets out how any amount remaining in a State
campaign account should be dealt with if--
a candidate is not successful at an election; or
an elected member ceases to be an elected member; or
one or more of a group is not successful at an election or
ceases to be an elected member.
New Division 1C provides for administrative expenditure
funding to be paid to registered political parties represented in the
Parliament and independent elected members. This funding is
provided in some other Australian jurisdictions, and recognises
the administrative burden on political parties and independent
members.
Section 207G(1) requires the Commission to make administrative
expenditure funding payments quarterly in advance to a
registered political party or independent elected member.
Section 207G(2) provides for registered political parties to be
paid $10 000 each quarter for each elected member who is a
member of that registered political party. The payment is made
27
on a pro-rata basis for each day the elected member is a member
of the registered political party.
Section 207G(3) provides for independent elected members to be
paid $10 000 each quarter. The payment is made on a pro-rata
basis for each day the person is an elected member.
Section 207G(4) provides for the payment of administrative
expenditure funding to registered political parties in an election
quarter. In relation to an election quarter, an amount of $10 000
will be paid to a registered political party on a pro-rata basis
for--
each elected member who was an elected member on
1 October of the general election year--each day that
person is a member of the registered political party
between 1 October and the day of the general election;
and
each person who was declared elected at the general
election under section 121 of the Electoral Act--each
day that person is a member of the registered political
party between the day after the general election day and
31 December.
Section 207G(5) provides for the payment of administrative
expenditure funding to an independent elected member in an
election quarter. A person who was an independent elected
member on 1 October of the general election year, will be
entitled to be paid $10 000 for the election quarter on a pro-rata
basis for--
each day between 1 October and the day of the general
election; and
each day between the day after the general election
day and 31 December, if they were a candidate at the
general election and declared elected under section 121
of the Electoral Act.
Section 207G(6) provides for the payment of administrative
expenditure funding in an election quarter, to a person who
was elected as an independent elected member at the general
election. The payment will be $10 000 for the election quarter
on a pro-rata basis for each day between the day after the general
election day and 31 December.
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Section 207G(7) provides a mechanism to recover from a
registered political party or independent elected member
any over payment of administrative expenditure funding.
Section 207G(8) prohibits any payment made under this section
from being used for electoral expenditure or paid into a State
campaign account. This is to ensure administrative expenditure
funding is not used to incur political expenditure.
Section 207G(9) makes the registered political party or an
independent elected member liable for any contravention of
section 207G(8). The penalty for a contravention is equal to
200 per cent of the amount of administrative expenditure funding
paid into the State campaign account or used for electoral
expenditure.
Section 207G(10) gives the Commission the power to recover
a penalty under section 207(9), by deducting the penalty from
subsequent payments, or as a debt due to the State.
Section 207G(11) provides that the first payment of
administrative expenditure funding will be made on 1 July 2018.
Section 207G(12) provides for when payment will be made in
relation to amounts payable for the period between 1 October and
the general election day in an election quarter. This amount will
be paid to registered political parties and independent elected
members on 1 October of the year in which the general election
is held.
Section 207G(13) provides for when payment will be made in
relation to the amount payable for the period of the day after the
general election day until 31 December in an election quarter.
This amount will be paid to registered political parties and
independent elected members either--
on 1 January of the year after the general election year;
or
as soon as reasonable practicable, in the event that a
person has not been declared elected under section 121
of the Electoral Act by 1 January in the year after the
general election year.
Section 207G(14) defines an independent elected member for the
purpose of this section.
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Part 5--Amendments relating to political donations disclosure
and reporting scheme
Clause 46 amends section 206 of the Electoral Act.
Subclause (1) inserts new definitions for annual return,
disclosure return, and general cap.
Subclause (2) amends various definitions in the Electoral Act
including--
election period which is defined to mean the period between
general elections, starting the day after a general election, and
ending on the day of the next general election. The first election
period for the purposes of this Part will commence the day after
the 2018 general election day, and end on the day of the next
general election.
The definition of relevant licence is repealed as this definition is
no longer referred to in Part 12 and is not required.
Subclause (3) amends the definition of electoral expenditure so
that it refers to expenditure incurred during the election period,
rather than during the 12 months immediately before election
day. This will allow public funding to be claimed for all electoral
expenditure incurred between general elections, in addition to
any political expenditure.
Subclause (4) repeals section 206(5) of the Electoral Act as this
provision is no longer required.
Clause 47 amends the heading of Division 2 of Part 12 of the Electoral Act
to "Division 2--Public Funding".
Clause 48 amends section 208 of the Electoral Act to provide that a
statement of expenditure, to enable the provision of public
funding, may include both electoral expenditure and political
expenditure. Electoral expenditure and political expenditure
may be incurred either during the election period for a claim in
relation to a general election, or incurred specifically in relation
to a by-election.
Clause 49 amends section 209 of the Electoral Act to provide that an
audit certificate must be provided with an annual return given
by a registered political party, associated entity, third party
campaigner or nominated entity.
30
Clause 50 amends section 211 of the Electoral Act to provide for new
public funding sums for an election.
Subclause (1) clarifies that the current sum provided in
section 211(2) of the Electoral Act will apply for the
election held on 24 November 2018.
Subclause (2) inserts a new section 211(2A) to provide for new
sums that will apply to elections held after 24 November 2018,
as follows--
$6.00 is payable for each first preference vote given for
a candidate for election to the Assembly;
$3.00 is payable for each first preference vote given for
a candidate for election to the Council.
The new public funding sums will only apply to elections held
after the 2018 general election.
Clause 51 amends section 212 of the Electoral Act in relation to the
making of public funding payments.
Subclause (1) makes the payment of public funding subject to the
penalty provided in new section 212(2A).
Subclause (2) provides for a reduction in public funding by
double the amount of the part of a political donation that is
received in contravention of Part 12.
Subclause (3) inserts new subsection 212(4A) to provide that a
payment from the Commission under section 212 must be paid
into the State campaign account.
Clause 52 inserts new sections 212A and 212B in the Electoral Act.
New section 212A provides for instalment payments of the public
funding entitlement. New section 212B provides for instalment
payments of the public funding entitlement in relation to the
2022 general election.
Section 212A(1) sets out eligibility to receive payments under
this section.
Section 212A(2) provides that an eligible registered political
party or eligible independent candidate may be paid an amount
equal to the payment they received for the immediately preceding
general election under section 212 of the Electoral Act, in
4 instalments as follows--
31
40 per cent within 30 days of the Commission being
given an expenditure statement under section 208 of the
Electoral Act for the immediately preceding general
election;
20 per cent on 30 April in each of the 2 calendar years
preceding the calendar year in which the general
election to which the payment is held; and
20 per cent on 30 April in the calendar year in which the
general election to which the payment relates is held.
Section 212A(3) provides for eligible registered political parties
and independent candidates to be paid the balance of their public
funding entitlement following the general election, after taking
into account the amount paid under this section prior to the
general election.
Section 212A(4) provides a mechanism for the Commission to
recover from an eligible registered political party or independent
candidate an over payment under this section.
Section 212A(5) sets out that in the event of a general election
held out of cycle due to the dissolution of the Assembly, eligible
political parties and independent candidates are not entitled to
receive any unpaid, but expected, amounts of public funding
payable under this section. Sections 212A(3) and (4) will also
apply in relation to the public funding payable for the out of
cycle general election, to reconcile the amount payable with the
amount already paid under this section.
Section 212A(6) provides that the 20 per cent instalment
payments under subsection 2(b) and (c) must not be used by
an eligible registered political party or eligible independent
candidate as security or collateral for a loan.
Section 212A(7) defines an eligible independent candidate,
eligible registered political party, independent candidate and
loan for the purpose of this section.
New section 212B provides a special rule for instalment
payments of the public funding entitlement in relation to the
2022 general election only.
Section 212B(1) provides that this section applies in relation to
the general election to be held in 2022.
32
Section 212B(2) provides that the amount payable under this
section to an eligible registered political party or eligible
independent candidate is to be calculated in relation to what
would have been payable at the 2018 general election on the
assumption that the new public funding rates provided in
clause 50 of the Bill had applied in relation to the 2018 general
election.
Section 212B(3) provides for the amount payable in relation to
the 2022 general election to be paid in 4 instalments as follows--
40 per cent within 30 days of the Commission being
given an expenditure statement under section 208 in
relation to the 2018 general election;
20 per cent on 30 April in each of the 2 calendar years
preceding the calendar year in which the 2022 general
election is held; and
20 per cent on 30 April 2022.
Section 212B(4) provides that section 212A(3) to (7) will apply
in relation to a payment made under new section 212B(2).
Clause 53 repeals section 214 of the Electoral Act as the indexation
provision will be replaced by new section 217O.
Clause 54 substitutes Division 3 in Part 12 of the Electoral Act.
New Division 3 is titled Division 3--Disclosure of political
donations.
New section 216 provides for the disclosure of political
donations. The purpose of introducing a disclosure regime is
to provide Victorians with greater transparency of financial
contributions in the State political system in a timelier manner.
Section 216(1) provides that a donor must provide a disclosure
return to the Commission for each political donation made
during a financial year that is equal to or exceeds the disclosure
threshold. The disclosure threshold is set at $1000 and will be
indexed in accordance with new section 217Q. The disclosure
return must be provided within 21 days of the making of the
political donation.
33
Section 216(2) provides that a donor must also provide a
disclosure return to the Commission for each political donation
made during a financial year that is less than the disclosure
threshold, if the political donations are made to the same
recipient covered by the scheme and, when aggregated, are
equal to or exceed the disclosure threshold.
Section 216(3) specifies the time within which a disclosure
return required under section 216(2) must be provided to the
Commission. The donor must provide the disclosure return
either--
within 21 days of making the political donation in the
financial year that first results in the sum of the political
donations to that same recipient equalling or exceeding
the disclosure threshold; or
within 21 days of making each subsequent donation to
that same recipient during the financial year.
Section 216(4) provides that if a registered political party,
candidate at an election, group, elected member, nominated
entity, associated entity or third party campaigner receives a
political donation that is equal to or exceeds the disclosure
threshold, its registered officer or registered agent (as the case
may be) must provide a disclosure return to the Commission.
The disclosure return must be provided within 21 days of
receiving the political donation.
Section 216(5) specifies the details that must be included on a
disclosure return.
Section 216(6) clarifies that a separate disclosure return must be
provided for each political donation that requires a disclosure
return under this section, except for a disclosure return provided
in accordance with section 216(3)(a). A single disclosure return
must be provided to satisfy the requirement under section
216(3)(a), which will cover each of the political donations that
the donor has made in the financial year which result in the sum
of the donations equalling or exceeding the disclosure threshold.
Section 216(7) provides that if a registered political party,
candidate at an election, group, elected member, nominated
entity, associated entity or third party campaigner receives a
political donation that would require a donor to provide a
disclosure return under this section, then its registered officer or
34
registered agent (as the case may be) must notify the donor of
their obligation to provide the Commission with a disclosure
return.
Section 216(8) provides that small contributions do not count
towards the disclosure threshold for either donors or recipients.
The purpose of the small contribution exclusion is to allow small,
ad hoc donations to be made without risking donors or recipients
being in breach of the disclosure threshold or general cap by the
donation of token amounts. However, this subsection will not
apply if small contributions are made in contravention of new
section 218B. That is, the small contribution exemption is being
used to intentionally avoid or circumvent the political donations
disclosure and reporting scheme.
Section 217 provides for the Commission to publish disclosure
returns. The purpose of publishing disclosure returns is to
provide the public with timely information in relation to who is
making and receiving political donations.
Section 217(1) makes it a requirement for the Commission to
publish a disclosure return on its Internet site within 7 days of
receiving the disclosure return.
Section 217(2) allows the Commission to decline to publish a
disclosure return if the Commission considers that the return
contains false or misleading information.
Clause 55 inserts new Divisions 3B to 3D in Part 12 of the Electoral Act.
New Division 3B titled General cap on donations is inserted.
The purpose of new Division 3B is to provide a cap on political
donations that may be received between general elections, to
minimise the influence of single donors.
New section 217D provides for a general cap on political
donations that may be received between general elections by
a registered political party, candidate, group, elected member,
associated entity, third party campaigner or nominated entity
of a registered political party.
Section 217D(1) provides that a political donation made to, or
for the benefit of, a registered political party, candidate at an
election, group, elected member, associated entity, third party
campaigner, or nominated entity of a registered political party
must not exceed the general cap for the election period.
35
Section 217D(2) provides that it is unlawful for a registered
political party, candidate, group, elected member, nominated
entity, associated entity, or third party campaigner to accept a
political donation that exceeds the general cap, either on its own,
or due to its aggregation with other political donations in
accordance with new section 217E.
Section 217D(3) provides an exception to section 217D(2) by
providing that it is not unlawful to accept a political donation
exceeding the general cap, if the political donation is unlawful
due to it being aggregated with other political donations, and the
person or entity did not know, and could not have reasonably
known, of the other political donations included in the
aggregation. The amount exceeding the general cap must be
returned to the donor, or otherwise forfeited to the State.
Section 217D(4) provides that, for the avoidance of doubt, it is
not unlawful for a person or entity to accept a political donation
that exceeds the general cap if the part in excess is paid into an
account kept exclusively for the purposes of a Commonwealth
election campaign. The general cap only applies to political
donations for State election campaigns.
Section 217D(5) provides that a contribution from a candidate
or elected member to their own election campaign will not be
included in the general cap for that candidate or elected member.
Section 217D(6) provides that certain political donations must
be included in the general cap of a registered political party.
A political donation to--
a candidate who has been selected by a registered
political party to be a candidate in an election; or
an elected member who is an endorsed candidate of a
registered political party; or
a group that is endorsed by a registered political party;
or
a nominated entity of a registered political party;
must be included as a donation to the registered political party for
the purpose of the general cap.
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Section 217D(7) provides that a political donation to a candidate
or elected member who is a member of a group, is included in the
general cap for that group. This provision read together with
subsection (6) means that if the group is endorsed by a registered
political party, the political donation to the group will also count
towards the general cap for that registered political party.
Section 217D(8) clarifies that a gift to an associated entity
or third party campaigner, that is not given to incur political
expenditure, is not included in the general cap.
Section 217D(9) provides that small contributions do not
count towards the general cap for either donors or recipients.
The purpose of the small contribution exclusion is to allow small,
ad hoc donations to be made without risking donors or recipients
being in breach of the disclosure threshold or general cap by the
donation of token amounts.
Section 217D(10) provides that subsection (9) does not apply if
the small contribution exemption is used to avoid or circumvent
the political donations disclosure and reporting scheme, in which
case the anti-circumvention penalty in new section 218B would
apply.
New section 217E provides aggregation provisions to ensure that
donation splitting cannot be used to avoid the general cap and
circumvent the intention of the scheme.
Section 217E(1) provides that this section applies for the purpose
of determining the general cap.
Section 217E(2) provides that a political donation will exceed the
general cap if all political donations from the same donor to the
same recipient within the same election period, when added
together, exceed the general cap.
Section 217E(3) clarifies that for the purpose of this section,
political donations received by a person in their capacity as either
a candidate at an election, or an elected member, are aggregated
for the purpose of the general cap. This ensures that the general
cap does not re-set if an elected member becomes a candidate, or
vice versa.
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Section 217E(4) provides that small contributions are not to be
included for aggregation purposes. The purpose of the small
contribution exclusion is to allow small, ad hoc donations to be
made without risking donors or recipients being in breach of the
disclosure threshold by giving token amounts.
Section 217E(5) provides that subsection (4) does not apply if the
small contribution exemption is used to avoid or circumvent the
political donations disclosure and reporting scheme, in which
case the anti-circumvention penalty in new section 218B would
apply.
New section 217F limits the number of third party campaigners a
donor may provide a political donation to. This is to prevent the
proliferation of third party campaigners as a means to exceed the
general cap, by donors seeking to provide political donations
among a large number of third party campaigners.
New section 217G provides that any political donation accepted
in contravention of Division 3B is forfeited to the State. This is
to ensure that the recipient of a political donation exceeding the
general cap does not enjoy the benefits of that donation.
New Division 3C titled Annual returns and other information
is inserted.
New section 217H provides that 2 or more amounts received
during the same financial year by, or on behalf of, the same
recipient are taken to be one amount.
New section 217I requires the registered officer of a registered
political party to provide the Commission with an annual return
within 16 weeks after the end of each financial year.
The annual return must set out--
the total amount received; and
total payments made and total debts incurred; and
specific details for all amounts received and outstanding
debts over the $1000 disclosure threshold.
New sections 217J, 217K and 217L require the registered agents
of associated entities, third party campaigners and nominated
entities to provide the Commission with an annual return within
16 weeks after the end of each financial year. The annual return
only needs to include details in relation to the State campaign
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account. This recognises that associated entities, third party
campaigners and nominated entities should only be required to
report on their political expenditure, and not other activities that
are unrelated to Victorian elections. The annual return must set
out--
total amount received; and
total payments made and total debts incurred; and
specific details for all amounts received and outstanding
debts over the $1000 disclosure threshold.
New section 217M requires the registered agents of candidates,
groups and elected members to provide the Commission with an
annual return within 16 weeks after the end of each financial
year. The annual return must set out political donations received
during the financial year from a donor that, when aggregated,
equal or exceed the disclosure threshold of $1000. A candidate,
group or elected member is not required to provide an annual
return if it did not receive any political donations during the
financial year that would need to be reported.
New section 217N provides that annual returns must not include
lists of membership of registered political parties, associated
entities or third party campaigners.
New section 217O(1) requires the registered agent of
an associated entity or a nominated entity to provide the
Commission with a copy of any other financial report it was
required to prepare for the financial year. This additional
requirement acknowledges the close relationship that associated
entities and nominated entities have with political parties, and
assists the Commission in monitoring compliance with the
scheme.
New section 217O(2) makes failure to comply with this section
an offence. The penalty for this offence is 200 penalty units.
New section 217P makes it a requirement for the Commission to
publish annual returns on its website within 6 months of the end
of the financial year.
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New Division 3D titled Indexation is inserted.
New section 217Q(1) provides the formula for calculating
the indexation of certain amounts provided in Part 12 of the
Electoral Act over time.
New section 217Q(2) provides for amounts to be rounded to
the nearest whole cent, dollar or 10 dollars for the purpose of
calculating indexation.
Clause 56 amends section 218 of the Electoral Act.
Subclauses (1), (2) and (3) substitutes the penalty provided at the
foot of sections 218(1), 218(2) and 218(5) of the Electoral Act
to be 300 penalty units or 2 years imprisonment or both.
Subclause (4) amends new section 218(5A) so that it will also be
an offence to knowingly make or accept a political donation that
is unlawful under Division 3B.
Clause 57 inserts new sections 218A and 218B into the Electoral Act.
The purpose of these sections is to introduce penalties for
non-compliance with the disclosure and reporting regime and
strengthen existing penalties in relation to giving false or
misleading information. This will ensure that there is sufficient
deterrence, and signal the importance of compliance with the
scheme.
Section 218A(1) makes a person guilty of an offence if they fail
to provide a disclosure return or an annual return. The penalty
for this offence is 200 penalty units.
Section 218A(2) makes a person guilty of an offence if they
provide a disclosure return or an annual return that to the
knowledge of the person contains false or misleading
information. The penalty for this offence is 300 penalty units
or 2 years imprisonment or both.
Section 218A(3) makes a person guilty of an offence if they gives
to another person that is required to provide a disclosure return or
an annual return, information relating to the return that the person
knows is false or misleading. The penalty for this offence is
300 penalty units or 2 years imprisonment or both.
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Section 218A(4) requires a person to retain information related to
the particulars of a disclosure or annual return for 4 years after
the return has been provided to the Commission. The penalty for
non-compliance is 200 penalty units.
Section 218A(5) exempts from subsection (4) any record that is
transferred from one person to another in the normal course of
business.
Section 218A(6) provides that a prosecution in respect of an
alleged offence against a provision of this section may be started
at any time within 3 years after the alleged offence was
committed.
New section 218B(1) makes it an offence for a person to enter
into or carry out a scheme, with the intention of circumventing
a prohibition or requirement of Part 12 of the Electoral Act.
The penalty for this offence is 10 years imprisonment to ensure
that there is a considerable deterrent.
New section 218B(2) clarifies that, for the avoidance of doubt,
a person will commit an offence under section 218B(1) if they
enter into or carry out a scheme whereby an entity receives gifts
that would have been unlawful under Part 12 of the Electoral
Act if the entity was a nominated entity, and then after receiving
those gifts the entity becomes a nominated entity, and the
purpose of the scheme was to allow the nominated entity to
receive gifts that would otherwise have been unlawful to receive.
Clause 58 amends section 220 of the Electoral Act to provide that records
required to be retained under that section must be retained for a
period of at least 4 years from the election day in that election.
Clause 59 makes a series of amendments to section 221 of the Electoral
Act so that the section will also apply to disclosure returns and
annual returns. It also provides the Commission with the power
to permit a person who has lodged a return to amend that return.
Clause 60 inserts new section 221A titled Confidential information into
the Electoral Act.
Section 221A(1) makes the following confidential information
for the purposes of Part 12 of the Electoral Act--
the street address of a donor (not including the suburb
and State); and
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the full address of a silent elector (including the street,
suburb and State).
Section 221A(2) provides for regulations to prescribe other
information provided to the Commission under Part 12 of the
Electoral Act to be confidential information.
Section 212A(3) prohibits the Commission from disclosing,
either directly or indirectly, confidential information, unless the
Commission is required by law or is otherwise permitted to
disclose the information.
Clause 61 repeals section 222 of the Electoral Act titled Provision of
annual returns.
Clause 62 inserts new section 222DA into the Electoral Act titled
Electronic lodgement of disclosure returns and annual
returns.
Section 222DA(1) provides the Commission with the power to
determine procedures in relation to how disclosure of returns
and annual returns are lodged with the Commission.
Section 222DA(2) requires that if the Commission determines
procedures, these must be published on its Internet site.
This will provide donors and recipients with transparency
of the Commission's reporting requirements.
Section 222DA(3) provides that any disclosure return or annual
return that is lodged in accordance with the Commission's
procedures is to be taken as having been provided in accordance
with the Electoral Act.
Part 6--Amendment of Public Administration Act 2004
Clause 63 amends section 99 of the Public Administration Act to provide
for a minimum number of Parliamentary advisers that will be
provided to a non-Government party, or independent elected
member, represented in the Parliament of Victoria.
Subclause (1) substitutes sections 99(1) and (2) of the Public
Administration Act.
New section 99(1) provides that a person may be employed
as a Parliamentary adviser for a term not exceeding 4 years,
subject to the directions of the Premier in respect of conditions
of employment and termination of employment.
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New section 99(2) provides that the Leader of any
non-Government party represented in the Parliament of Victoria
and each independent elected member of the Parliament of
Victoria is entitled to be provided with one Parliamentary
adviser.
New section 99(2A) provides that the Leader of any
non-Government party represented in the Parliament of Victoria
is also entitled to be provided with--
for elected members of the party up to 9--one
Parliamentary adviser for each 3 elected members; and
for elected members of the party above 9--one
Parliamentary adviser for each 2 elected members.
This formula acknowledges that larger parties represented
in the Parliament are more likely to act as the alternative
Government, and should receive additional resources to satisfy
public expectations regarding their role in the Parliament.
Subclause (2) inserts new section 99(4) in the Public
Administration Act to provide definitions of elected member
and independent elected member for the purpose of the section.
Part 7--Repeal of amending Act
Clause 64 provides that this Act is repealed on 1 July 2019.
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
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