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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
ELECTORAL AMENDMENT (INTEGRITY OF ELECTIONS)
BILL 2021
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 5 amended (Election expenditure)
6. Sections 5A and 5B inserted
5A. Meaning of gift
5B. Meaning of political donations
7. Parts 6A, 6B, 6C and 6D inserted
PART 6A - ELECTORAL EXPENDITURE IN RESPECT OF
ASSEMBLY ELECTIONS
Division 1 - Election expenditure
165A. Election agent
165B. Candidate's expenditure limit
165C. Party's expenditure limit
Division 2 - Expenditure returns
165D. Candidate's election expenditure return
165E. Party's election expenditure return
165F. Commission to check returns
165G. Return available for public inspection
[Bill ]
165H. Power of Commission to require information relating to
election expenditure
PART 6B - THIRD PARTY ELECTORAL EXPENDITURE
Division 1 - Registration of third parties
165I. Requirement for registration
165J. Register of third parties
165K. Application for registration
165L. Deciding application
165M. Obligation to notify change to details
165N. Cancellation of registration
Division 2 - Election expenditure
165O. Agent
165P. Third Party expenditure limit
Division 3 - Expenditure returns
165Q. Third party election expenditure return
165R. Commission to check returns
165S. Return available for public inspection
165T. Power of Commission to require information relating to
election expenditure
PART 6C - POLITICAL DONATIONS
165U. Interpretation
165V. Register of political donations
165W. Disclosure of political donations of $1 000 or more
165X. Limitations on eligibility to make donations
165Y. State campaign account
165Z. General cap
165ZA. Limit on political donations to regulated third parties
165ZB. Anonymous political donations
165ZC. Power of Commission to require information relating to
political donations
165ZD. Register and disclosures to be published
165ZE. Forfeiture of political donations accepted in contravention
2
of this Division
PART 6D - ELECTION FUNDING
165ZF. Entitlement to election funding
165ZG. Making a claim
165ZH. Deciding claim
165ZI. Reconsideration of decision refusing a claim
165ZJ. Making of payments
165ZK. Advance payments
165ZL. Miscellaneous
8. Section 196 substituted
196. Candidate names not to be used on how-to-vote cards
without authority
9. Section 197 amended (Misleading and deceptive electoral matter)
10. Section 197A inserted
197A. Misleading advertising
11. Section 199 substituted
199. Offences relating to electoral expenditure
199A. Offences relating to political donations
12. Repeal of Act
3
4
ELECTORAL AMENDMENT (INTEGRITY OF
ELECTIONS) BILL 2021
(Brought in by Cassandra Stanwell O'Connor MP)
A BILL FOR
An Act to amend the Electoral Act 2004 to introduce electoral
expenditure limits for Assembly Elections, as well as regulation of
political donations, electoral expenditure, third party electoral
activities, electoral advertising, and related matters
Be it enacted by Her Excellency the Governor of Tasmania, by and
with the advice and consent of the Legislative Council and House of
Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Electoral Amendment
(Integrity of Elections) Act 2021.
2. Commencement
This Act commences on the day on which this Act
receives the Royal Assent.
3. Principal Act
In this Act, the Electoral Act 2004* is referred to as the
Principal Act.
*No. 51 of 2004
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4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as follows:
(a) by omitting the definition of election agent
and substituting the following definition:
election agent means -
(a) in relation to a candidate or
intending Candidate at a
Council election, a person
appointed under section 158;
and
(b) in relation to a candidate or
intending Candidate at an
Assembly election, a person
appointed under section
165A; and
(c) in relation to a third party, a
person appointed under
section 165O;
(b) by inserting the following definition after the
definition of deputy registered officer:
disposition of property means any
conveyance, transfer, assignment,
settlement, delivery, payment or other
alienation of property, and includes -
(d) the allotment of shares in a
company; and
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(e) the creation of a trust in
property; and
(f) the grant or creation of any
lease, mortgage, charge,
servitude, licence, power,
partnership or interest in
property; and
(g) the release, discharge,
surrender, forfeiture or
abandonment, at law or in
equity, of any debt, contract
or chose in action, or of any
interest in property; and
(h) the exercise by a person of a
general power of appointment
of property in favour of any
other person; and
(i) any transaction entered into
by any person with intent
thereby to diminish, directly
or indirectly, the value of the
person's own property and to
increase the value of the
property of any other person;
(c) by omitting "poll;" from paragraph (b) of the
definition of expenditure period and
substituting "poll; or";
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(d) by inserting the following paragraph after
paragraph (b) in the definition of expenditure
period:
(c) in the case of an Assembly election -
(i) if the election is held within
12 months of the
commencement of section 4
of the Electoral Amendment
(Integrity of Elections) Act
2021, the period commencing
on the commencement of that
Act and ending on the day on
which the election is held; or
(ii) if the election is held at any
other time, the period of 12
months ending on the day on
which the election is held;
(e) by inserting the following definition after the
definition of prisoner:
property includes both real and personal
property;
(f) by inserting the following definition after the
definition of registered party:
regulated third party means -
(a) a third party registered for an
election under section 165N;
and
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(b) a third party required to be
registered for an election
under section 165I;
(g) by inserting the following definition after the
definition of State roll:
third party means an entity other than a
party or a candidate;
5. Section 5 amended (Election expenditure)
Section 5(1) of the Principal Act is amended by omitting
the definition of election expenditure and substituting the
following definition:
election expenditure, in relation to an election,
means expenditure incurred predominantly for
an electoral matter that is for -
(a) designing, producing, printing,
broadcasting or publishing
material for an election; or
(b) the cost of distributing material for
an election; or
(c) carrying out an opinion poll or
research; or
(d) contracted services related to an
activity mentioned in paragraph
(a), (b) or (c); or
(e) any other matter prescribed.
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6. Sections 5A and 5B inserted
After section 5 of the Principal Act, the following sections
are inserted in Part 1:
5A. Meaning of gift
(1) For the purposes of this Act, a gift is any
disposition of property made by a person to
another person, otherwise than by will, being a
disposition made without consideration in
money or money's worth or with inadequate
consideration, and includes the provision of a
service (other than volunteer labour) for no
consideration or for inadequate consideration.
(2) For the purposes of this Act -
(a) the amount of a donation or expenditure
consisting of a disposition of property
other than money is taken to be the
amount equal to the value of the property
disposed of; and
(b) the value of property disposed of or the
value of a gift may, if the Commission so
requires, be determined by valuers
appointed or approved by the
Commission.
5B. Meaning of political donation
(1) For the purposes of this Act, a political donation
is -
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(a) a gift or loan made to or for the benefit of
a party; or
(b) a gift or loan made to or for the benefit of
a Member; or
(c) a gift or loan made to or for the benefit of
a candidate or an intending candidate; or
(d) a gift or loan made to a third party for the
purposes of election expenditure; or
(e) a gift or loan made to an entity or other
person (not being a party, a Member, a
candidate or an intending candidate), the
whole or part of which was used or is
intended to be used by the entity or
person -
(i) to enable the entity or person
to make, directly or indirectly,
a political donation or to incur
electoral expenditure; or
(ii) to reimburse the entity or
person for making, directly or
indirectly, a political donation
or incurring electoral
expenditure.
(2) An amount paid by a person as a contribution,
entry fee or other payment to entitle that or any
other person to participate in, or otherwise obtain
any benefit from, a fund-raising venture or
function (being an amount that forms part of the
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proceeds of the venture or function) is taken to
be a gift for the purposes of this section.
(3) An annual or other subscription paid to a party
by a member of the party, or a person or entity
(including an industrial organisation) for
affiliation with the party, is taken to be a gift to
the party for the purposes of this section.
(4) A gift or loan to an individual that was made in a
private capacity to the individual for his or her
personal use, and that the individual has not
used, and does not intend to use, solely or
substantially for a purpose related to an election
or to his or her duties as a Member, is not a
political donation.
7. Parts 6A, 6B, 6C and 6D inserted
After section 165 of the Principal Act, the following Parts
are inserted:
PART 6A - ELECTORAL EXPENDITURE IN
RESPECT OF ASSEMBLY ELECTIONS
Division 1 - Election expenditure
165A. Election agent
(1) A candidate or intending candidate at an
Assembly election may appoint a person to be
his or her election agent.
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(2) An appointment under subsection (1) is to be in
writing and signed by the candidate or intending
candidate.
(3) Only one person may hold an appointment as the
election agent for a particular candidate or
intending candidate at any one time.
(4) The election agent of a candidate or intending
candidate may incur or authorise expenditure on
behalf of that candidate or intending candidate.
165B. Candidate's expenditure limit
(1) A candidate at an Assembly election must not, in
respect of his or her campaign for that election,
incur election expenditure exceeding the
expenditure limit.
(2) The expenditure limit is $82 000 in the year
2021 and increases by an additional $1 000 each
subsequent year.
(3) If a court convicts a candidate of an offence
against subsection (1) it is to, at the time of
conviction, make a finding of the amount by
which the candidate's election expenditure
exceeded the expenditure limit.
(4) For the purposes of subsection (1), expenditure
incurred by the election agent of a candidate is
taken to have been incurred by the candidate.
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165C. Party's expenditure limit
(1) A party must not, in respect of the party's
campaign for an Assembly election, incur
election expenditure exceeding the expenditure
limit.
(2) If a party, in respect of its campaign for an
Assembly election, incurs election expenditure
exceeding the expenditure limit, the party
secretary is guilty of an offence.
(3) For the purposes of subsection (1), the
expenditure limit is $820 000 in the year 2021
and increases by an additional $10 000 each
subsequent year.
(4) If a court convicts a party secretary of an offence
against subsection (2), it is, at the time of
conviction, to make a finding of the amount by
which the party's election expenditure exceeded
the expenditure limit.
Division 2 - Expenditure returns
165D. Candidate's election expenditure return
Every candidate at an Assembly election must
complete an election expenditure return which is
to -
(a) be in an approved form; and
(b) include particulars of -
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(i) all election expenditure that
has been paid by the candidate
or paid on behalf of the
candidate by his or her election
agent; and
(ii) all disputed claims and all
unpaid claims against the
candidate in respect of any
election expenditure; and
(c) be accompanied by any invoice account
or receipt in respect of each item of
election expenditure that exceeds $20;
and
(d) be signed and declared before a justice
or a commissioner for declarations; and
(e) be lodged with the Commission within
120 days after the day on which the
result of an Assembly election is
declared, or within such extended
period, not exceeding 30 days, as the
Commission may allow.
165E. Party's election expenditure return
A party secretary at an Assembly election must
complete an election expenditure return which is
to -
(a) be in an approved form; and
(b) include particulars of -
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(i) all election expenditure that
has been paid by the party or
paid on behalf of the party; and
(ii) all disputed claims and all
unpaid claims against the party
in respect of any election
expenditure; and
(c) be accompanied by any invoice account
or receipt in respect of each item of
election expenditure that exceeds $20;
and
(d) be signed and declared before a justice
or a commissioner for declarations; and
(e) be lodged with the Commission within
120 days after the day on which the
result of an Assembly election is
declared, or within such extended
period, not exceeding 30 days, as the
Commission may allow.
165F. Commission to check returns
On receiving a return lodged under section 165D
or 165E, the Commission is to satisfy itself as to
the authenticity and accuracy of the return and
that all particulars required to be included in the
return have been included.
165G. Return available for public inspection
(1) The Commission is to -
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(a) keep returns under sections 165D and
165E for a period of 10 years; and
(b) during that period make those returns
available for inspection, free of charge,
by a member of the public.
(2) At the expiration of the period referred to in
subsection (1)(a), the Commission may cause the
returns to be disposed of in an approved manner.
165H. Power of Commission to require information
relating to election expenditure
(1) If the Commission has reason to believe that a
person is in possession of information or records
relating to election expenditure, the Commission
may, by written notice, require -
(a) the person to provide that information at
a specified time and place; or
(b) the person to produce for inspection any
of those records at a specified time and
place; or
(c) the person to answer any question
relating to that expenditure at a
specified time and place; or
(d) any person who was involved with the
recording, compilation or creation of
those records to make a statement
providing an explanation of them.
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(2) The Commission may make and retain copies of
any records produced under subsection (1)(b) or
of any parts of those records.
(3) Any information provided, answer given or
statement made by a person in response to a
requirement made under subsection (1) may not
be used in any proceedings against that person
except proceedings under section 199(8) in
relation to that information, answer or statement.
(4) A person is not obliged to provide any
information, produce records, answer a question
or make a statement under this section unless
that person has first been informed by the
Commission that he or she is required to do so.
(5) In any proceedings for an offence in relation to
this section, a copy of a record or part of a record
made under subsection (2) is admissible in
evidence in those proceedings and, in the
absence of evidence to the contrary, the contents
of the copy are presumed to be the same as those
on the original record or part.
(6) In this section -
records includes books, accounts, minutes,
registers, deeds, writings or documents
and any other sources of information
compiled, recorded or stored in written
form, on micro-film or by electronic
process, or in any other manner or by any
other means.
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PART 6B - THIRD PARTY ELECTORAL
EXPENDITURE
Division 1 - Registration of third parties
165I. Requirement for registration
(1) A third party must be registered for an election
under this part if the election expenditure
incurred by, or with the authority of, the third
party during the expenditure period for the
election exceeds $6 000.
(2) For the avoidance of doubt, a third party does
not commit an offence against this Act or
another Act only because the person fails to
register for an election under subsection (1).
(3) For the purposes of this Act, multiple third
parties are considered to be the same third party
if -
(a) The third parties are subsidiaries, within
the meaning of section 46 of the
Corporations Act 2001 of the
Commonwealth, of the same third party,
including the third party to which others
are subsidiaries; or
(b) The financial controllers of the third
parties are the same, and the election
expenditure of the third parties can
reasonably be considered to be for the
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same, or a substantially similar,
purpose; or
(c) The majority of board members of the
third parties are the same, and the
election expenditure of the third parties
can reasonably be considered to be for
the same, or a substantially similar,
purpose; or
(d) Any combination of (a), (b), or (c)
applies.
165J. Register of third parties
(1) The Commission must, for each election, keep a
register of the third parties registered for the
election under this part.
(2) A register kept under subsection (1)--
(a) is called the register of third parties for
the election for which the register is
kept; and
(b) must be kept up to date; and
(c) may be kept in the way and form the
Commission considers appropriate.
(3) The Commission must publish a register of third
parties for an election on the Commission's
website.
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165K. Application for registration
(1) A third party that intends to incur election
expenditure for an election may apply to the
Commission for registration for the election.
(2) An application under subsection (1) application
must -
(a) be in the approved form; and
(b) include such details as may be
prescribed; and
(c) be accompanied by an appointment of
an individual as the third party's agent
under section 165O; and
(d) be made to the Commission before the
polling day for the election.
165L. Deciding application
(1) As soon as practicable after receiving a third
party's application under section 165K, or an
amended application under this section, the
Commission -
(a) must refuse the application, if the
application was not made before the day
required under section 165K(2)(d); or
(b) may refuse the application, if the
application does not conform with the
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requirements under section
165K(2)(a),(b) or (c); or
(c) must approve the application, if it does
not refuse the application under
paragraph (a) or (b).
(2) As soon as practicable after approving an
application under section subsection (1)(c), the
Commission must -
(a) enter the details about the third party
stated in the application in the register
of third parties kept for the election
under section 165J; and
(b) give the third party written notice that
the third party has been registered for
the election.
(3) A third party is registered for an election on the
day on which the details of the third party are
entered into the register of third parties under
section (2)(a).
(4) If the Commission decides to refuse the
application under subsection (1)(a) or (b), the
Commission must give the third party written
notice of the decision as soon as practicable
advising -
(a) that the Commission has decided to
refuse the application for registration;
and
(b) the reason for the refusal; and
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(c) if the reason for the refusal is the
application is incomplete or incorrect -
that the third party may -
(i) amend the application in the
way stated in the notice; and
(ii) resubmit the application to the
Commission within 30 days
after receiving the notice.
(5) An application that is amended and resubmitted
to the Commission under subsection (4)(c) is
taken to have been made on the day the original
application was made.
165M. Obligation to notify change to details
(1) If a relevant detail about a third party registered
under section 165O(2) changes, the agent of the
third party must give the commission notice, in
the approved form, about the change within 30
days after the change happens.
Penalty: Fine not exceeding 20 penalty units.
(2) A person does not commit an offence against
subsection (1) if the person has a reasonable
excuse.
(3) In this section -
relevant detail, about a registered third party,
means -
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(a) a detail about the third party
stated in the party's application
under section 165K; or
(b) if a detail mentioned in
paragraph (a) has been the
subject of a notice under
subsection (1) - the changed
detail as stated in the notice.
165N. Cancellation of registration
(1) The agent of a third party may ask the
Commission, in writing, to cancel the third
party's registration for an election.
(2) The Commission must cancel the third party's
registration for the election if the Commission is
satisfied that the obligations that apply to the
third party for the election under this Part have
ended.
(3) If the Commission cancels the registration, the
Commission must -
(a) record the cancellation and the day of
the cancellation in the register; and
(b) give the third party notice about the
cancellation.
(4) The cancellation takes effect on -
(a) the day the third party receives the
notice; or
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(b) a later day stated in the notice.
(5) If the Commission refuses to cancel the
registration, the Commission must give the third
party a notice that states the Commission's
decision and reasons for the decision.
Division 2 - Election expenditure
165O. Agent
(1) A third party may appoint a person in writing to
be the third party's election agent for an election.
(2) During any period for which no appointment is
in force under subsection (1), the third party's
election agent is taken to be -
(a) If the third party is an individual, the
third party; or
(b) If the third party is not an individual,
the financial controller of the third
party.
(3) Only one person may hold an appointment as the
election agent for a particular third party at any
one time.
(4) The election agent of a third party may incur or
authorise expenditure on behalf of that candidate
or intending candidate.
(5) In this section -
financial controller means -
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(a) In the case of a corporation, the
secretary of the corporation; or
(b) In the case of a trustee of a
trust, the trustee; or
(c) In the case of a corporation
that is the trustee of a trust, the
secretary of the corporation; or
(d) If paragraphs (a), (b), and (c)
do not apply, the person
responsible for keeping the
financial records of the third
party.
165P. Third Party expenditure limit
(1) A third party must not incur election expenditure
exceeding the expenditure limit.
(2) The expenditure limit for a third party is for an
Assembly election is $82 000 in the year 2021,
increasing by an additional $1 000 each
subsequent year.
(3) If a court convicts a person of an offence against
subsection (1) it is to, at the time of conviction,
make a finding of the amount by which the
person's election expenditure exceeded the
expenditure limit.
(4) For the purposes of subsection (1), expenditure
incurred by the election agent of a third party is
taken to have been incurred by the third party.
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Division 3 - Expenditure returns
165Q. Third party election expenditure return
The election agent of a regulated third party at an
election must complete an election expenditure
return which is to -
(a) be in an approved form; and
(b) include particulars of -
(i) all election expenditure that
has been paid by the third party
or paid on behalf of the third
party by the third party's
election agent; and
(ii) all disputed claims and all
unpaid claims against the third
party in respect of any election
expenditure; and
(c) be accompanied by any invoice account
or receipt in respect of each item of
election expenditure that exceeds $20;
and
(d) be signed and declared before a justice
or a commissioner for declarations; and
(e) be lodged with the Commission within
120 days after the day on which the
result of an election is declared, or
within such extended period, not
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exceeding 30 days, as the Commission
may allow.
165R. Commission to check returns
On receiving a return lodged under section
165Q, the Commission is to satisfy itself as to
the authenticity and accuracy of the return and
that all particulars required to be included in the
return have been included.
165S. Return available for public inspection
(1) The Commission is to -
(a) keep returns under section 165Q for a
period of 10 years; and
(b) during that period make those returns
available for inspection, free of charge,
by a member of the public.
(2) At the expiration of the period referred to in
subsection (1)(a), the Commission may cause the
returns to be disposed of in an approved manner.
165T. Power of Commission to require information
relating to election expenditure
(1) If the Commission has reason to believe that a
person is in possession of information or records
relating to election expenditure, the Commission
may, by written notice, require -
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(a) the person to provide that information at
a specified time and place; or
(b) the person to produce for inspection any
of those records at a specified time and
place; or
(c) the person to answer any question
relating to that expenditure at a
specified time and place; or
(d) any person who was involved with the
recording, compilation or creation of
those records to make a statement
providing an explanation of them.
(2) The Commission may make and retain copies of
any records produced under subsection (1)(b) or
of any parts of those records.
(3) Any information provided, answer given or
statement made by a person in response to a
requirement made under subsection (1) may not
be used in any proceedings against that person
except proceedings under section 199(8) in
relation to that information, answer or statement.
(4) A person is not obliged to provide any
information, produce records, answer a question
or make a statement under this section unless
that person has first been informed by the
Commission that he or she is required to do so.
(5) In any proceedings for an offence in relation to
this section, a copy of a record or part of a record
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made under subsection (2) is admissible in
evidence in those proceedings and, in the
absence of evidence to the contrary, the contents
of the copy are presumed to be the same as those
on the original record or part.
(6) In this section -
records includes books, accounts, minutes,
registers, deeds, writings or documents
and any other sources of information
compiled, recorded or stored in written
form, on micro-film or by electronic
process, or in any other manner or by any
other means.
PART 6C - POLITICAL DONATIONS
165U. Interpretation
In this part -
authorised deposit-taking institution
means -
(a) a body corporate that is an
ADI for the purposes of
the Banking Act 1959 of the
Commonwealth; or
(b) the Reserve Bank of
Australia; or
(c) a person who carries on
State banking within the
meaning of paragraph
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51(xiii) of the
Commonwealth of Australia
Constitution Act 1900.
disclosable donation means -
(a) a political donation of $1
000 or more; and
(b) any number of political
donations from the same
donor within a 1 year period
that cumulatively amount to
$1 000 or more, made to the
political participant;
disclosure period, in relation to a
disclosable donation, means -
(a) in relation to a single
donation of $1 000 or more
-
(i) if the political
donation is received
within 7 days before a
relevant polling day -
24 hours after the
political donation is
received;
(ii) if the political
donation is not
received within 7 days
before a relevant
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polling day - the
seventh business day
after the political
donation is received.
(b) in relation to a number of
political donations from the
same donor within a 1 year
period that cumulatively
amount to $1 000 or more,
for the political donation
that amounts to or exceeds
the cumulative total of $1
000, and for each subsequent
political donation where the
cumulative total continues to
meet or exceed $1 000 -
(i) if the political
donation is received
within 7 days before a
relevant polling day -
24 hours after the
political donation is
received;
(ii) if the political
donation is not
received within 7 days
before a relevant
polling day - the
seventh business day
after the day the
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political donation is
received;
general cap means -
(a) a political donation of $3
000 or more; and
(b) any number of political
donations from the same
donor within a 4 year period
that cumulatively amount to
$3 000 or more, made to the
political participant;
political participant means
(a) a candidate in an Assembly
or Council election; and
(b) an intending candidate in an
Assembly or Council
election; and
(c) a party; and
(d) a regulated third party;
relevant polling day means a polling day
which -
(a) in the case of a candidate, or
an intending candidate, is a
polling day in relation to an
election in which they are a
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candidate or an intending
candidate; or
(b) in the case of a party, is a
polling day in relation to an
election in which the party
has an endorsed candidate;
or
(c) in relation to a third party, is
a polling day in relation to
an election in which the
third party is registered for,
or required to be registered
for, under Part 6D;
responsible agent, in relation to a political
participant, means -
(a) in relation to a candidate, the
candidate's election agent;
and
(b) in relation to an intending
candidate, the intending
candidate's election agent;
and
(c) in relation to a party, the
party secretary;
(d) in relation to a regulated
third party, the regulated
third party's election agent;
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State campaign account means an account
for the purposes of section 165Y.
165V. Register of political donations
(1) The responsible agent of a political participant
must keep a register in an approved form of all
political donations made in a financial year to
the political participant.
(2) The responsible agent of a political participant
must lodge the register referred to in subsection
(1) with the Commission within 7 business days
of the end of the financial year to which it
relates.
165W. Disclosure of political donations of $1 000 or more
The responsible agent of a political participant
must disclose to the Commission in an approved
form any disclosable donations made to the
political participant, within the disclosure period
in respect of that disclosable donation.
165X. Limitations on eligibility to make donations
(1) No person or entity other than a natural person
who is a citizen or permanent resident of
Australia may make a political donation to a
political participant.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 12
months, or both.
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(2) A person must not make a political donation to a
political participant on behalf of another person
or entity.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 12
months, or both.
(3) A person or entity must not provide a gift or loan
to a person with the intent of facilitating a
political donation to a political participant.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 12
months, or both.
(4) A person or entity must not provide a gift or loan
to a second person, who is not a political
participant, with the intent of that gift or loan
being used for election expenditure by the
second person once the second person becomes a
political participant.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 12
months, or both.
165Y. State campaign account
(1) The responsible agent of a political participant
must keep a State campaign account consisting
of a separate account or accounts with an
authorised deposit-taking institution for the
purpose of elections.
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(2) The responsible agent of a political participant
must ensure that each political donation received
by a political participant is paid into the State
campaign account.
(3) A political participant, or a responsible agent of
a political participant, must ensure that any
amount kept in any account for Commonwealth
electoral purposes is not paid into the State
campaign account.
(4) The responsible agent of a political participant
must ensure that no amount of money for
election expenditure is paid for unless the
amount is paid from the State campaign account.
(5) The regulations may prescribe -
(a) what other amounts of any kind may be
paid into a State campaign account; and
(b) what other amounts of any kind must
not be paid into a State campaign
account.
(6) After debts have been paid, any amount
remaining in a State campaign account of a
candidate is to be paid -
(a) if a candidate made personal
contributions to their State campaign
account, they may pay themselves an
amount not in excess of the total of any
personal contributions they made, and
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any balance remaining in the State
campaign account is to be paid -
(i) if the candidate was not a
member of a registered
political party, to a charity
nominated by the candidate;
or
(ii) if the candidate was a
member of a party, to the
party for payment into its
State campaign account; or
(b) if a candidate has not made personal
contributions to their State campaign
account -
(i) if the candidate was not a
member of a registered
political party, to a charity
nominated by the candidate;
or
(ii) if the candidate was a
member of a party, to the
party for payment into its
State campaign account.
165Z. General cap
(1) A political donation made to a political
participant must not exceed the general cap.
(2) A responsible agent of a political participant or a
political participant must not accept a political
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donation if the political donation would exceed
the general cap.
(3) A responsible agent of a political participant or a
political participant may accept a political
donation in contravention of subsection (2) if the
political donation, or that part of the political
donation, that exceeds the general cap is made
for Commonwealth electoral purposes and is
not paid into the State campaign account of the
political participant.
(4) A contribution by a candidate to their own State
campaign account is not included in the general
cap in respect of that candidate.
(5) A contribution made by -
(a) an endorsed candidate of a party; or
(b) a councillor within the meaning of the
Local Government Act 1993; or
(c) a Member of the Australian House of
Representatives or Senate; or
(d) a Member of the Council or the
Assembly -
to a party of which they are a registered member,
is not included in the general cap in respect of
that party.
(6) A political donation to an endorsed candidate of
a party must also be included as a donation to the
party for the purposes of the general cap.
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165ZA. Limit on political donations to regulated third
parties
It is unlawful for a person to make political
donations to more than 6 regulated third parties
during a four-year period, unless the total sum of
political donations is lower than an amount equal
to six-times the general cap.
165ZB. Anonymous political donations
A political participant, or the responsible agent
of a political participant, must not accept a
disclosable donation made by a person, unless
the name of the person making the political
donation is known to the political participant, or
the responsible agent of the political participant.
165ZC. Power of Commission to require information
relating to political donations
(1) If the Commission has reason to believe that a
person is in possession of information or records
relating to political donations, the Commission
may, by written notice, require -
(a) the person to provide that information at
a specified time and place; or
(b) the person to produce for inspection any
of those records at a specified time and
place; or
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(c) the person to answer any question
relating to the donations at a specified
time and place; or
(d) any person who was involved with the
compilation of those records to make a
statement providing an explanation of
them.
(2) The Commission may make and retain copies of
any records produced under subsection (1)(b) or
of any parts of those records.
(3) Any information provided, answer given or
statement made by a person in response to a
requirement made under subsection (1) may not
be used in any proceedings against that person
except proceedings under section 199A in
relation to that information, answer or statement.
(4) A person is not obliged to provide any
information, produce records, answer a question
or make a statement under this section unless
that person has first been informed by the
Commission that he or she is required to do so.
(5) In any proceedings for an offence in relation to
this section, a copy of a record or part of a record
made under subsection (2) is admissible in
evidence in those proceedings and, in the
absence of evidence to the contrary, the contents
of the copy are presumed to be the same as those
on the original record or part.
(6) In this section -
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records includes books, accounts, minutes,
registers, deeds, writings or documents
and any other sources of information
compiled, recorded or stored in written
form, on micro-film or by electronic
process, or in any other manner or by
any other means.
165ZD. Register and disclosures to be published
(1) The Commission is to -
(a) keep a register lodged under section
165V for a period of 10 years; and
(b) publish those parts of a register lodged
under section 165V that are approved
for publishing by the Commission as
soon as practicable, but in any case no
later than 24 hours after receipt.
(2) The Commission is to -
(a) keep the information disclosed under
section 165W for a period of 10 years;
and
(b) publish the details of the information
disclosed under sections 165W as soon
as practicable, but in any case no later
than 24 hours after receipt.
(3) At the expiration of the period referred to in
subsection (1)(a) and (2)(a), the Commission
may cause the register or the information
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disclosed to be disposed of in an approved
manner.
165ZE. Forfeiture of political donations accepted in
contravention of this Division
(1) If a political donation is received that results in
the political participant, or the responsible agent
of a political participant, contravening section
165X, 165Z, 165ZA or 165ZB of this Act, the
political participant, or the responsible agent of a
political participant must, as soon as practicable
-
(a) take all reasonable steps to return the
political donation; or
(b) if he or she is unable to return the
political donation, forfeit the political
donation to the State in a manner that is
prescribed.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 12
months, or both.
(2) An amount payable under subsection (1)(b) is a
debt payable to the State by the political
participant and may be recovered by proceedings
in a court of competent jurisdiction.
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PART 6D - ELECTION FUNDING
165ZF.Entitlement to election funding
(1) The amount of election funding to which a party
or candidate is entitled is the lesser of -
(a) the election funding amount calculated
under subsection (2); and
(b) the amount of electoral expenditure
claimed in relation to the party or
candidate and accepted by the
Commission under section 165ZH.
(2) The election funding amount is -
(c) if the entity entitled to the funding is a
party - an amount calculated in
accordance with section 293(2) of
Commonwealth Electoral Act 1918,
indexed in accordance with section 321
of the same Act; or
(d) if the entity entitled to the funding is a
candidate - an amount calculated in
accordance with section 294(2) of
Commonwealth Electoral Act 1918,
indexed in accordance with section 321
of the same Act.
165ZG. Making a claim
(1) A claim for election funding may be made by -
(a) a candidate; or
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(b) an agent on behalf of a candidate; or
(c) the party secretary on behalf of a party.
(2) A claim must -
(a) be in the approved form; and
(b) be lodged with the Commission--
(i) during the period of 20
weeks after the polling day
for the election to which
the claim relates; or
(ii) within a longer period,
before the end of the
period specified in
paragraph (a), that the
Commission determines;
and
(c) state all election expenditure for which
election funding is sought; and
(d) contain such details as may be
prescribed.
165ZH. Deciding claim
(1) The Commission must, after receiving a claim
under section 165ZG -
(a) decide whether to accept or refuse the
claim, in whole or in part; and
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(b) to the extent the Commission accepts
the claim, pay the amount required
by section 165ZG.
(2) In deciding whether to accept or refuse a claim
under subsection (1) in whole or in part, the
Commission must only consider -
(a) whether expenditure claimed is election
expenditure; and
(b) if expenditure claimed is election
expenditure, whether the election
expenditure was incurred for the
election.
(3) The Commission may, by written notice, require
the candidate, agent of the candidate, or party
secretary to provide further information the
commission reasonably requires to decide
whether to accept or refuse the claim.
(4) If the Commission accepts a claim under this
Section, in whole or in part, the Commission
must pay the amount determined by section
165ZF.
(5) If the Commission refuses a claim under this
Section, in whole or in part, the Commission
must give the candidate, agent of the candidate,
or party secretary who made the claim a notice
that states -
(a) that the claim has been refused, in
whole or in part; and
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(b) the reasons for the refusal.
165ZI. Reconsideration of decision refusing a claim
(1) If a claim under section 165ZG is refused, in
whole or in part, under section 165ZH, the
candidate, agent of the candidate, or party
secretary who made the claim may apply to the
Commission for the Commission to reconsider
the decision.
(2) An application under subsection (1) must -
(c) be in writing; and
(d) set out the reasons for the application;
and
(e) be made within -
(i) 28 days after the day on
which the candidate or
relevant agent is notified of
the refusal; or
(ii) if, either before or after the
end of that period of 28
days, the commission
extends the period within
which the application may
be made, the extended
period for making the
application.
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(3) On receiving an application under this section,
the Commission must -
(a) reconsider the decision; and
(b) decide to -
(i) affirm the decision; or
(ii) vary the decision; or
(iii) set aside the decision and
make another decision.
(4) The Commission must give the candidate, agent
of the candidate, or party secretary who made the
application a notice stating the decision on the
reconsideration together with a statement of the
reasons for the decision.
(5) If the Commission's decision on the
reconsideration would require an amount, or an
additional amount, of election funding to be
paid, the Commission must pay the amount
within 20 days after the day of its decision.
165ZJ. Making of payments
(1) If the Commission is satisfied an amount of
election funding claimed by a party secretary is
payable to the party, the Commission must pay
the amount to the party secretary.
(2) If the Commission is satisfied an amount of
election funding claimed by a candidate or the
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candidate's agent is payable to the candidate, the
Commission must pay the amount -
(a) to the candidate or candidate's agent; or
(b) if the candidate so nominates, to the
party secretary of a party to which to
candidate is an endorsed candidate.
(3) If a payment is made under this part and the
recipient is not entitled to receive the whole or a
part of the amount paid, whether because of a
false statement in a claim or otherwise, the
amount or the part of the amount may be
recovered by the State as a debt due to the State.
165ZK. Advance payments
(1) For the purposes of this section, a reference to a
candidate does not include an endorsed
candidate of a party.
(2) A party or candidate is, subject to and in
accordance with this Act, eligible for an advance
payment, for election funding, for election
expenditure, of an amount determined in
accordance with subsection (3).
(3) The amount payable for an advance payment is
-
(a) if the advanced payment is in respect of
an Assembly election, an amount equal
to 50% of the total amount to which the
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party or candidate was entitled in the
previous Assembly general election; or
(b) if the advanced payment is in respect of
a Council election, an amount equal to
50% of the total amount to which the
party or candidate was entitled in the
previous Council election.
(4) The amount payable by way of an advance
payment under this section in relation to an
election may be paid, as a lump sum or by way
of instalments, at any time after the
commencement of the election campaign period
in relation to the election.
(5) Any amount paid to a party or candidate by way
of advance payment under this section in respect
of an election is to be deducted from the amount
payable under section 165ZJ in respect of that
election.
(6) If a party or candidate receives an amount, by
way of advance payment under this section in
respect of an election, in excess of the amount, if
any, to which it becomes entitled under section
165ZJ, the amount of the excess must be repaid
to the Commission within 60 days after the day
for the return of the writs for that election.
(7) Any amount received by a party or candidate by
way of advance payment under this section in
respect of an election must be repaid, on demand
by the Commission, to the Commission if -
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(a) the party or candidate does not contest
the election; or
(b) in the case of a party, before the polling
day for the election, the party ceases to
operate or be registered or it has been,
or is being, dissolved or wound up.
(8) Any amount required to be repaid under this
section may be recovered by the Commission as
a debt in any court of competent jurisdiction.
165ZL. Miscellaneous
For this part, if a party and a candidate endorsed
by the party both claim to have incurred the
same item of election expenditure, the election
expenditure is taken to be election expenditure
incurred by the party.
8. Section 196 substituted (Candidate names not to be used on
how-to-vote cards without authority)
Section 196 of the Principal Act is repealed and the
following section is substituted -
196. Candidate names not to be used on how-to-vote
cards without authority
(1) A person must not between the issue of the writ
for an election and the close of poll at that
election print, publish or distribute any "how to
vote" card which contains the name, photograph
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or a likeness of a candidate or intending
candidate at that election without the written
consent of the candidate.
(2) Subsection (1) does not apply to any matter
printed, published or distributed by the
Commission or the Commissioner in the course
of promoting public awareness of elections and
parliamentary matters.
9. Section 197 amended (Misleading and deceptive electoral
matter)
Section 197 of the Principal Act is amended by -
(a) omitting "vote." From paragraph (c) and
substituting "vote; or"; and
(b) inserting the following paragraph after paragraph
(c) -
(d) print, publish or distribute electoral matter
that -
(i) contains incorrect or
misleading information about
whether a person is or is not a
candidate, a member of, or
endorsed by a party;
(ii) uses the name or derivative of
a name of a party in a way
intended to or likely to mislead
any elector;
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(iii) could result in an elector
casting an informal vote;
(iv) contains a statement, whether
express or implied, to the
effect that voting is not
compulsory; or
(v) contains a statement intended
or likely to mislead an elector
that the material is an official
communication from the
Electoral Commission or
Electoral Commissioner; or
(vi) does any other thing that may
be prescribed.
10. Section 197A inserted (Misleading advertising)
After section 197 of the Principal Act, the following
section is inserted in Division 5 of Part 7:
197A. Misleading Advertising
(1) This section applies to advertisements published
by any means (including radio or television).
(2) A person who authorises, causes or permits the
publication of an electoral advertisement (an
advertiser) is guilty of an offence if the
advertisement contains a statement purporting to
be a statement of fact that is inaccurate and
misleading to a material extent.
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Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
(3) It is a defence to a charge of an offence against
subsection (2) to establish that the defendant -
(a) took no part in determining the content
of the advertisement; and
(b) could not reasonably be expected to
have known that the statement to which
the charge relates was inaccurate and
misleading.
(4) If the Commissioner is satisfied that an electoral
advertisement contains a statement purporting to
be a statement of fact that is inaccurate and
misleading to a material extent, the
Commissioner may require the advertiser to,
within a timeframe specified by the
Commissioner, do one or more of the following:
(a) withdraw the advertisement from
further publication; or
(b) publish a retraction in specified terms
and a specified manner and form; or
(c) pay costs of any person reasonably
incurred in correcting the inaccurate or
misleading statement.
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11. Section 199 substituted
Section 199 of the Principal Act is repealed, and the
following sections are substituted in Division 6 of Part 7:
199. Offences relating to electoral expenditure
(1) A person who contravenes section 159, 162,
165D, 165E or 165Q is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
(2) A person who contravenes section 160, 165B,
165C or 165P by incurring any amount not
exceeding $1 000 in excess of the expenditure
limit provided for in sections 160, 165B, 165C,
and 165P respectively, is guilty of an offence.
Penalty: Fine not exceeding 0.05 penalty unit for
each $1 of that first mentioned amount.
(3) A person who contravenes section 160, 165B,
165C or 165P by incurring any amount
exceeding $1 000 in excess of the expenditure
limit provided for in sections 160, 165B, 165C,
and 165P respectively, is guilty of an offence.
Penalty: Fine not exceeding 150 penalty units.
(4) A person who without reasonable excuse, fails to
comply with section 161, 165D, 165E or 165Q
within the period referred to in that section, or, if
the Commission has allowed that period to be
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extended, within that extended period, is guilty
of an offence.
Penalty: Fine not exceeding 200 penalty units.
(5) If a court finds that a candidate who is successful
at an election is guilty of -
(a) an offence under subsection (3) and, in
respect of that offence, the court makes a
finding that the candidate incurred
electoral expenditure that exceeded the
expenditure limit by more than $1 000,
the court, if it is satisfied with the
correctness of that finding, is to declare
that candidate's election void unless the
court is satisfied that there are special
circumstances that make it undesirable or
inappropriate for it to make such a
declaration; or
(b) an offence under subsection (4), the court
is to declare that candidate's election void
unless the court is satisfied that there are
special circumstances of the kind referred
to in paragraph (a).
(6) A person who, in purported compliance with
section 161, 165D, 165E, or 165Q files a return,
invoice or receipt which is, to his or her
knowledge, false or misleading in a material
particular is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units.
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(7) A person must not, without reasonable excuse,
fail to comply with a requirement made
under section 165(1), 165H(1) or 165T(1).
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(8) A person who, in purported compliance with a
requirement made under section 165(1),
165H(1) or 165T(1), provides information, gives
an answer or makes a statement which is, or
produces records which are, to his or her
knowledge, false or misleading in a material
particular is guilty of an offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(9) In any proceedings for an offence under this
section, a copy of a record or part of a record
made under section 165(2), 165H(2) or 165T(2),
as the case may be, is admissible in evidence in
those proceedings and, in the absence of
evidence to the contrary, the contents of the copy
are to be presumed to be the same as those on
the original record or part.
199A. Offences relating to political donations
(1) A person who contravenes section 165V or
165W is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units.
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(2) A person who, in purported compliance with
section 165V or 165W, lodges a register that is,
to the person's knowledge, false or misleading in
a material particular is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
(3) A person who contravenes section 165X, 165Z,
165ZA, or 165ZB is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units.
(4) A person must not, without reasonable excuse,
fail to comply with a requirement made under
section 165ZC(1).
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(5) A person who, in purported compliance with a
requirement made under section 165ZC(1),
provides information, gives an answer or makes
a statement which is, or produces records which
are, to his or her knowledge, false or misleading
in a material particular is guilty of an offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(6) In any proceedings for an offence against this
section, a copy of a record or part of a record
made under section 165ZC(2) is admissible in
evidence in those proceedings and, in the
58
Electoral Amendment (Integrity of Elections) Act 2021
Act No. of 2021
s. 12
absence of evidence to the contrary, the contents
of the copy are to be presumed to be the same as
those on the original record or part.
12. Repeal of Act
This Act is repealed on the three hundred and sixty fifth
day from the day on which all of the provisions of this Act
commence.