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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 150
As laid on the table and read a first time, 19 October 2005
South Australia
Electoral
(Campaign Donations) Amendment Bill 2005
A Bill For
An
Act to amend the Electoral Act 1985.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Electoral
Act 1985
4 Insertion of Part 13A
Part 13A—Disclosure of campaign donations
Division 1—Preliminary
130A Interpretation
Division 2—Agents
130B Appointment of agents by parties,
candidates and groups
130C Requisites for appointment
130D Registration of party agents
130E Termination of appointment of agent of
candidate or group
130F Responsibility for action in case of
political parties
Division 3—Disclosure of
donations
130G Campaign donations returns for
candidates or groups
130H Returns by persons incurring political expenditure
130I Returns by persons making gifts to
parties or candidates
130J Certain gifts not to be received
130K Certain loans not to be received
130L Nil returns
Division 4—Annual financial
returns by registered political parties and associated entities
130M Annual financial returns by registered
political parties
130N Annual returns by associated entities
Division 5—Related matters
130O Public inspection of returns
130P Records to be kept
130Q Investigation etc
130R Inability to complete returns
130S Amendment of returns
130T Offences
130U Non-compliance with Act does not affect
election
Schedule 1—Transitional provisions
1 Interpretation
2 Requirements for
returns
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Electoral (Campaign Donations)
Amendment Act 2005.
This Act will come into operation 2 months after assent.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Electoral Act 1985
After Part 13 insert:
Part 13A—Disclosure
of campaign donations
Division 1—Preliminary
130A—Interpretation
(1) In this Part—
associated entity means an entity that—
(a) is
controlled by 1 or more registered political parties; or
(b) operates
wholly or mainly for the benefit of 1 or more registered political parties;
disposition of property means any conveyance, transfer,
assignment, settlement, delivery, payment or other alienation of property, and
includes—
(a) the
allotment of shares in a company; and
(b) the
creation of a trust in property; and
(c) the
grant or creation of any lease, mortgage, charge, servitude, licence, power,
partnership or interest in property; and
(d) 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
(e) the
exercise by a person of a general power of appointment of property in favour of
any other person; and
(f) 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;
election means an election of members of the Legislative Council or an
election of a member of the House of Assembly;
entity means—
(a) an
incorporated or unincorporated body; or
(b) the
trustee of a trust;
financial controller, in relation to an entity, means—
(a) if
the entity is a company—the secretary of the company;
(b) if
the entity is the trustee of a trust—the trustee;
(c) in
other cases—the person responsible for maintaining the financial records of the
entity;
gift means 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, but does not include an annual subscription paid
to a political party by a person in respect of the person's membership of the
party;
group means a group of 2 or more candidates nominated for election to
the Legislative Council who have their names grouped together on ballot papers
in accordance with section 58;
property includes money;
registered industrial organisation means an organisation registered under
the Industrial Law Reform (Fair Work) Act 2005 or under a law of the
Commonwealth or another State or a Territory concerning the registration of
industrial organisations.
(2) For
the purposes of this Part, the amount or value of a gift consisting of or
including a disposition of property other than money is, if the regulations so
provide, to be determined in accordance with principles set out or referred to
in the regulations.
(3) For the purposes of this Part—
(a) a
body corporate and any other body corporate that is related to the
first-mentioned body corporate is to be taken to be the same person; and
(b) the
question whether a body corporate is related to another body corporate is to be
determined in the same manner as the question whether a corporation is related
to another corporation is determined under the Corporations Act 2001 of
the Commonwealth.
(4) For the purposes of this Part—
(a) a
gift made to a candidate who is a member of a group is made to the group (and
not to the candidate) if it is made to the candidate for the benefit of all
members of the group; and
(b) a
gift made to a group all of whose members are endorsed as candidates by the
same registered political party is to be treated as a gift made to the party
(and not to the group); and
(c) a
gift made to a candidate who is endorsed as a candidate by a registered
political party and who is not a member of a group is to be treated as a gift
made to the party (and not to the candidate).
(5) For
the purposes of this Part, a campaign committee appointed or formed to assist
the campaign of a candidate or group in an election is, if the candidate is
endorsed as a candidate by a registered political party, or all members of the
group are endorsed as candidates by the same registered political party, to be
treated as a part of the party.
Division 2—Agents
130B—Appointment
of agents by parties, candidates and groups
(1) A
registered political party must appoint a person to be the agent of the party
for the purposes of this Part.
(2) A
candidate in an election (including a member of a group of candidates) may
appoint a person to be the agent of the candidate, for the purposes of this
Part, in relation to the election.
(3) Subject
to subsection (4), the members of a group of candidates in an election may
appoint a person to be the agent of the group, for the purposes of this Part,
in relation to the election.
(4) If
all the members of a group of candidates have been endorsed by the same
registered political party, the agent of the party is the agent of the group,
for the purposes of this Part, in relation to the election.
(5) During
any period during which there is no appointment in force under
subsection (2) of an agent of a candidate, the candidate is to be taken to
be his or her own agent for the purposes of this Part.
(6) Subject
to subsection (4), during any period during which there is no appointment
in force under subsection (3) of an agent of a group, the candidate whose
name is to appear first in the group on the ballot papers is to be taken to be
the agent of the group for the purposes of this Part.
130C—Requisites
for appointment
(1) An appointment of an agent under this Part
has no effect unless—
(a) the
person appointed is an elector and is eligible for appointment; and
(b) written
notice of the appointment is given to the Electoral Commissioner—
(i) if
the appointment is made by a political party—by the party; and
(ii) in
any other case—by the candidate, or each member of the group, making the
appointment; and
(c) the
name and address of the person appointed are set out in the notice; and
(d) the
person appointed has signed a form of consent to the appointment.
(2) A
consent under subsection (1) may be incorporated in, or written on the
same paper as, a notice under that subsection.
(3) If
a person who is the agent of a political party, of a candidate or of a group is
convicted of an offence against this Part or Part 20 of the Commonwealth
Electoral Act 1918 in relation to a particular State or Commonwealth
election, the person is not eligible to be appointed or to hold office as an
agent for the purposes of this Part for the purposes of any subsequent
election.
(4) An appointment (other than an appointment
by a political party) is not effective in relation to anything required by this
Part to be done—
(a) in
respect of a return under this Part in relation to an election; or
(b) during
a specified period after polling day for an election,
if notice of the appointment was given to the Electoral
Commissioner after the close of nominations for the election.
130D—Registration
of party agents
(1) The
Electoral Commissioner must establish and maintain a register, to be known as
the Register of Party Agents.
(2) The
Register must contain the name and address of every person appointed to be an
agent of a political party for the purposes of this Part.
(3) The appointment of an agent by a political
party—
(a) takes
effect on the entry of the name and address of the agent in the Register; and
(b) ceases
to have effect if the name and address of the agent are removed from the
Register.
(4) The name and address of a person may not be
removed from the Register unless—
(a) the
person gives to the Electoral Commissioner written notice that he or she has
resigned the appointment as agent; or
(b) the
political party that appointed the person gives to the Electoral Commissioner
written notice that the person has ceased to be an agent of the party and also
gives notice under this Part of the appointment of another person as agent of
the party; or
(c) the
person is convicted of an offence against this Part or Part 20 of the Commonwealth
Electoral Act 1918.
(5) If a person who is an agent of a political
party dies, the party by which the person was appointed must, within 28 days
after the death of the person, give to the Electoral Commissioner—
(a) written
notice of the death; and
(b) notice
under this Part of the appointment of another person as agent of the party.
(6) If
a person who is an agent of a political party is convicted of an offence
against this Part or Part 20 of the Commonwealth Electoral Act 1918, the
party must give notice under this Part of a fresh appointment within 28 days
after the conviction or, if an appeal against the conviction is instituted and
the conviction is affirmed, within 28 days after the appeal is determined.
(7) An
entry in the Register of Party Agents is, for all purposes, conclusive evidence
that the person described in the entry is the agent, for the purposes of this
Part, of the political party named in the entry.
130E—Termination
of appointment of agent of candidate or group
(1) A
candidate or the members of a group may, by giving written notice to the
Electoral Commissioner, revoke the appointment of a person as the agent of the
candidate or group, as the case may be.
(2) A
notice under subsection (1) has no effect unless it is signed by the
candidate or by each member of the group, as the case requires.
(3) If
the agent of a candidate or group dies or resigns, the candidate or the member
of the group whose name is to appear first in the group on the ballot papers
must, without delay, give to the Electoral Commissioner notice in writing of
the death or resignation.
130F—Responsibility
for action in case of political parties
If this Part imposes an obligation—
(a) on
a political party; or
(b) on
the agent of a political party and there is no agent of the party,
the obligation rests on each member of the executive committee of
the party, and this Part applies to each such member as if the obligation
rested on that member alone.
Division 3—Disclosure
of donations
130G—Campaign
donations returns for candidates or groups
(1) The
agent of each person (including a member of a group) who was a candidate in an
election must, within 15 weeks after the polling day for the election, furnish
to the Electoral Commissioner a campaign donations return for
that candidate, in a form approved by the Electoral Commissioner.
(2) The
agent of each group must, within 15 weeks after the polling day for an election
in relation to which the members of the group had their names grouped together
on the ballot papers for the election, furnish to the Electoral Commissioner a campaign
donations return for that group, in a form approved by the Electoral
Commissioner.
(3) Subject to this section, a campaign
donations return for a candidate or a group of candidates in an election must
set out—
(a) the
total amount or value of all gifts received by the candidate or group, as the
case may be, during the disclosure period; and
(b) the
number of persons who made such gifts; and
(c) the
amount or value of each such gift; and
(d) the
date on which each such gift was made; and
(e) in
the case of each such gift made on behalf of the members of an unincorporated
association, other than a registered industrial organisation—
(i) the
name of the association; and
(ii) the
names and addresses of the members of the executive committee (however described)
of the association; and
(f) in
the case of each such gift purportedly made out of a trust fund or out of the
funds of a foundation—
(i) the
names and addresses of the trustees of the fund or of the funds of the
foundation; and
(ii) the
title or other description of the trust fund or the name of the foundation, as
the case requires; and
(g) in
the case of each other such gift—the name and address of the person who made
the gift.
(4) A campaign donations return need not set
out—
(a) any
details required to be furnished to the Australian Electoral Commission under
Part 20 of the Commonwealth Electoral Act 1918; or
(b) any
details in respect of a private gift made to a candidate (including a member of
a group); or
(c) any
details required by subsection (3)(c) to (g) in respect of a gift if—
(i) in
the case of a gift made to a candidate (including a member of a group)—the
amount or value of the gift is less than $200; or
(ii) in
the case of a gift made to a group—the amount or value of the gift is less than
$1 000.
(5) For the purposes of this section—
(a) the
disclosure period is the period that commenced—
(i) in
relation to a candidate in an election who was a new candidate (other than a
candidate referred to in subparagraph (ii))—on the day on which the person
announced that he or she would be a candidate in the election or on the day on
which the person was nominated as a candidate, whichever was the earlier;
(ii) in
relation to a candidate in an election who was a new candidate and when he or
she became a candidate in the election, was a member of Parliament chosen by an
assembly of members of both Houses of Parliament under the Constitution
Act 1934 to fill a casual vacancy—on the day on which the person was
so chosen to be a member of Parliament;
(iii) in
relation to a candidate in an election who was not a new candidate—at the end
of 30 days after polling day for the last preceding election in which the
person was a candidate;
(iv) in
relation to a group of candidates in an election—on the day on which the
members of the group applied under section 58 to have their names grouped
together on the ballot papers for the election,
and that ended, in any case, at the end of 30 days after polling
day for the election; and
(b) a
candidate is a new candidate, in relation to an election, if the candidate had
not been a candidate in an earlier election the polling day for which was
within 5 years before the polling day for the election; and
(c) 2
or more gifts (excluding private gifts) made by the same person to a candidate
or group during the disclosure period are to be treated as one gift; and
(d) a
gift made to a candidate is a private gift if it is made in a private capacity
to the candidate for his or her personal use and the candidate has not used,
and will not use, the gift solely or substantially for a purpose related to an
election.
130H—Returns
by persons incurring political expenditure
(1) A
person (other than a registered political party, an associated entity, a
candidate or a member of a group) must, within 15 weeks after the polling day
for a general election ("the current election"), furnish to the
Electoral Commissioner a campaign donations return, in a form
approved by the Electoral Commissioner, if the person incurred political
expenditure of a total amount not less than $1 000 in relation to the current
election or any other election during the disclosure period.
(2) Subject to this section, a campaign
donations return under this section must set out—
(a) the
total amount or value of each gift received by the person during the disclosure
period—
(i) the
whole or a part of which was used by the person to enable the person to incur
or to reimburse the person for incurring political expenditure in relation to
an election during the disclosure period; and
(ii) the
amount or value of which is not less than $1 000; and
(b) the
date on which each such gift was made; and
(c) in
the case of each such gift made on behalf of the members of an unincorporated
association, other than a registered industrial organisation—
(i) the
name of the association; and
(ii) the
names and addresses of the members of the executive committee (however
described) of the association; and
(d) in
the case of each such gift purportedly made out of a trust fund or out of the
funds of a foundation—
(i) the
names and addresses of the trustees of the fund or of the funds of the
foundation; and
(ii) the
title or other description of the trust fund or the name of the foundation, as
the case requires; and
(e) in
the case of each other such gift—the name and address of the person who made
the gift.
(3) For the purposes of this section—
(a) expenditure
is political expenditure if it is incurred in connection with or by way of—
(i) publication
by any means (including radio or television) of electoral matter; or
(ii) by
any other means publicly expressing views on an issue in an election; or
(iii) the
making of a gift to a political party, a candidate in an election or a group;
or
(iv) the
making of a gift to a person on the understanding that that person or another
person will apply, either directly or indirectly, the whole or a part of the
gift as mentioned in subparagraph (i), (ii) or (iii); and
(b) expenditure
of a prescribed class is to be taken not to be political expenditure if the
regulations so provide; and
(c) the
disclosure period is the period that commenced at the end of 30 days after
polling day for the last general election preceding the current election and
that ended at the end of 30 days after polling day for the current election;
and
(d) 2
or more gifts made by the same person to another person during the disclosure
period are to be treated as one gift.
130I—Returns
by persons making gifts to parties or candidates
(1) A person (other than a registered political
party, an associated entity, a candidate or a member of a group) must, within
15 weeks after the polling day for an election ("the current election"),
furnish to the Electoral Commissioner a campaign donations return,
in a form approved by the Electoral Commissioner, if the person—
(a) made
a gift to a political party during the disclosure period the amount or value of
which is not less than the amount prescribed for the purposes of this paragraph
or, if no amount is prescribed, $5 000; or
(b) made
a gift to a candidate in the current election or any other election during the
disclosure period the amount or value of which is not less than the amount
prescribed for the purposes of this paragraph or, if no amount is prescribed,
$500; or
(c) made
a gift to a person or organisation prescribed by regulation.
(2) A campaign donations return under this
section must set out—
(a) the
amount and value of each gift referred to in subsection (1) made by the
person during the disclosure period; and
(b) the
date on which each such gift was made; and
(c) in
the case of each such gift made to an unincorporated association, other than a
registered industrial organisation—
(i) the
name of the association; and
(ii) the
names and addresses of the members of the executive committee (however
described) of the association; and
(d) in
the case of each such gift purportedly made to a trust fund or paid into the
funds of a foundation—
(i) the
names and addresses of the trustees of the fund or of the foundation; and
(ii) the
title or other description of the trust fund, or the name of the foundation, as
the case requires; and
(e) in
the case of each other such gift—the name and address of the person or
organisation to whom the gift was made.
(3) A campaign donations return need not set
out—
(a) any
details required to be furnished to the Australian Electoral Commission under
Part 20 of the Commonwealth Electoral Act 1918; or
(b) any
details in respect of a private gift made to a candidate (including a member of
a group).
(4) For the purposes of this section—
(a) the
disclosure period is the period that commenced at the end of 30 days after
polling day for the last general election preceding the current election and
that ended at the end of 30 days after polling day for the current election;
and
(b) 2
or more gifts made by the same person to another person or organisation during
the disclosure period are to be treated as one gift; and
(c) a
gift made to a candidate is a private gift if it is made in a private capacity
to the candidate for his or her personal use and the candidate has not used,
and will not use, the gift solely or substantially for a purpose related to an
election.
130J—Certain
gifts not to be received
(1) It is unlawful for a political party or a
person acting on behalf of a political party to receive a gift made to or for
the benefit of the party the amount or value of which is not less than $1 000,
unless—
(a) the
name and address of the person making the gift are known to the person
receiving the gift; or
(b) at
the time when the gift is made, the person making the gift gives to the person
receiving the gift his or her name and address and the person receiving the
gift has no grounds to believe that the name and address so given are not the
true name and address of the person making the gift.
(2) It is unlawful for a candidate or a member
of a group or a person acting on behalf of a candidate or group to receive a
gift made to or for the benefit of the candidate or the group, as the case may
be, the amount or value of which is not less than—
(a) in
the case of a gift made to a candidate—$200; or
(b) in
the case of a gift made to a group—$1 000,
unless—
(c) the
name and address of the person making the gift are known to the person
receiving the gift; or
(d) at
the time when the gift is made, the person making the gift gives to the person
receiving the gift his or her name and address and the person receiving the
gift has no grounds to believe that the name and address so given are not the
true name and address of the person making the gift.
(3) For the purposes of this section—
(a) a
reference to a gift made by a person includes a reference to a gift made on
behalf of the members of an unincorporated association; and
(b) a
reference to the name and address of a person making a gift is—
(i) in
the case of a gift made on behalf of the members of an unincorporated
association, other than a registered industrial organisation—a reference to—
(A) the
name of the association; and
(B) the
names and addresses of the members of the executive committee (however
described) of the association; and
(ii) in
the case of a gift purportedly made out of a trust fund or out of the funds of
a foundation—a reference to—
(A) the
names and addresses of the trustees of the fund or of the funds of the
foundation; and
(B) the
title or other description of the trust fund or the name of the foundation, as
the case requires; and
(c) a
person who is a candidate in an election is to be taken to remain a candidate
for 30 days after the polling day for the election; and
(d) persons
who constituted a group in an election are to be taken to continue to
constitute the same group for 30 days after the polling day for the election;
and
(e) 2
or more gifts made by the same person to or for the benefit of a political
party, a candidate or a group are to be treated as one gift.
(4) If a person receives a gift that, by virtue
of this section, it is unlawful for the person to receive, an amount equal to
the amount or value of the gift is payable by that person to the Crown and may
be recovered by the Crown as a debt by action, in a court of competent
jurisdiction, against—
(a) in
the case of a gift to or for the benefit of a political party—
(i) if
the party is a body corporate—the party; or
(ii) in
any other case—the agent of the party; or
(b) in
any other case—the candidate or a member of the group or the agent of the
candidate or of the group, as the case may be.
130K—Certain
loans not to be received
(1) It
is unlawful for a political party or a person acting on behalf of a political
party to receive a loan of $1 500 or more from a person or entity other than a
financial institution unless the loan is made in accordance with
subsection (3).
(2) It
is unlawful for a candidate or a member of a group or a person acting on behalf
of a candidate or group to receive a loan of $1 500 or more from a person or
entity other than a financial institution unless the loan is made in accordance
with subsection (3).
(3) The receiver of the loan must keep a record
of the following:
(a) the
terms and conditions of the loan; and
(b) if
the loan was received from a registered industrial organisation, other than a
financial institution—
(i) the
name of the organisation; and
(ii) the
names and addresses of the members of the executive committee (however
described) of the organisation; and
(c) if
the loan was received from an unincorporated association, other than a
registered industrial association—
(i) the
name of the association; and
(ii) the
names and addresses of the members of the executive committee (however
described) of the association; and
(d) if
the loan was paid out of a trust fund or out of the funds of a foundation—
(i) the
names and addresses of the trustees of the fund or of the foundation; and
(ii) the
title or other description of the trust fund, or the name of the foundation, as
the case requires; and
(e) unless
paragraph (b), (c) or (d) applies—the name and address of the person or
entity from whom the loan was received.
(4) For
the purpose of subsection (2), a person who is a candidate in an election
is taken to remain a candidate for 30 days after the polling day in the
election.
(5) For
the purpose of subsection (2), persons who constituted a group in an
election are taken to continue to constitute the same group for 30 days after
the polling day in the election.
(6) If a person receives a loan that, by virtue
of this section, it is unlawful for the person to receive, an amount equal to
the amount or value of the loan is payable by that person to the Crown and may
be recovered by the Crown as a debt by action, in a court of competent
jurisdiction, against—
(a) in
the case of a loan to or for the benefit of a political party—
(i) if
the party is a body corporate—the party; or
(ii) in
any other case—the agent of the party; or
(b) in
any other case—the candidate or a member of the group or the agent of the
candidate or of the group, as the case may be.
(7) For
the purposes of this section, if credit is provided on a credit card in respect
of card transactions, the credit is to be treated as a separate loan for each
transaction.
(8) In this section—
credit card means—
(a) any
article of a kind commonly known as a credit card; or
(b) any
similar article intended for use in obtaining cash, goods or services on
credit,
and includes any article of a kind that persons carrying on
business commonly issue to their customers or prospective customers for use in
obtaining goods or services from those persons on credit;
financial institution means an entity which carries on a
business that consists of, or includes, the provision of financial services or
financial products and which is—
(a) an
ADI; or
(b) an
entity prescribed by the regulations for the purposes of this paragraph;
loan means any of the following:
(a) an
advance of money;
(b) a
provision of credit or any other form of financial accommodation;
(c) a
payment of an amount for, on account of, on behalf of or at the request of, an
entity, if there is an express or implied obligation to repay the amount;
(d) a
transaction (whatever its terms or form) which in substance effects a loan of
money.
130L—Nil
returns
(1) If
no details are required to be included in a campaign donations return under this
Division for a candidate, the return must nevertheless be lodged and must
include a statement to the effect that no gifts of a kind required to be
disclosed were received.
(2) If
no details are required to be included in a campaign donations return under
this Division for a group, the return must nevertheless be lodged and must
include a statement to the effect that no gifts were received.
Division 4—Annual
financial returns by registered political parties and associated entities
130M—Annual
financial returns by registered political parties
(1) The
agent of each registered political party must, within 16 weeks after the end of
each financial year, furnish to the Electoral Commissioner an annual
financial return in respect of the financial year, in a form approved
by the Electoral Commissioner.
(2) Subject to this section, an annual
financial return in respect of a financial year must set out—
(a) the
total amount received by, or on behalf of, the party during the financial year;
and
(b) if
the sum of the amounts received by or on behalf of the party during the
financial year from the same person or organisation is not less than
$1 500—
(i) the
amount of the sum; and
(ii) in
the case of a sum received from an unincorporated association, other than a
registered industrial organisation—
(A) the
name of the association; and
(B) the
names and addresses of the members of the executive committee (however
described) of the association; and
(iii) in
the case of a sum purportedly paid out of a trust fund or out of the funds of a
foundation—
(A) the
names and addresses of the trustees of the fund or of the foundation; and
(B) the
title or other description of the trust fund or the name of the foundation, as
the case requires; and
(iv) if
the sum was received as a result of a loan—the information required to be kept
under section 130K(3), or the name of the financial institution, as the
case requires; and
(v) in
any other case—the name and address of the person or organisation.
(3) For
the purposes of subsection (2)(b), in calculating the sum of the amounts
received by or on behalf of the party from the same person or organisation, an
amount of less than $1 500 need not be counted.
(4) An
annual financial return need not set out any details required to be furnished
to the Australian Electoral Commission under Part 20 of the Commonwealth
Electoral Act 1918.
(5) For the purposes of this section—
(a) a
reference to an amount includes a reference to the value of a gift, loan or
bequest; and
(b) returns
are not to include lists of party membership; and
(c) the
regulations may require greater detail to be provided in returns than is
otherwise required by this section, including further breaking down of the
total amounts of receipts.
130N—Annual
returns by associated entities
(1) If
an entity is an associated entity at any time during a financial year, the
financial controller of the entity must, within 16 weeks after the end of the
financial year, furnish to the Electoral Commissioner an annual financial
return in respect of the financial year, in a form approved by the
Electoral Commissioner.
(2) Subject to this section, an annual
financial return in respect of a financial year must set out—
(a) the
total amount received by, or on behalf of, the entity during the financial
year; and
(b) if
the sum of the amounts received by or on behalf of the entity during the
financial year from the same person or organisation is not less than
$1 500—
(i) the
amount of the sum; and
(ii) in
the case of a sum received from an unincorporated association, other than a
registered industrial organisation—
(A) the
name of the association; and
(B) the
names and addresses of the members of the executive committee (however
described) of the association; and
(iii) in
the case of a sum purportedly paid out of a trust fund or out of the funds of a
foundation—
(A) the
names and addresses of the trustees of the fund or of the foundation; and
(B) the
title or other description of the trust fund or the name of the foundation, as
the case requires; and
(iv) in
any other case—the name and address of the person or organisation.
(3) For
the purposes of subsection (2)(b), in calculating the sum of the amounts
received by or on behalf of the entity from the same person or organisation, an
amount of less than $1 500 need not be counted.
(4) An
annual financial return need not set out any details required to be furnished
to the Australian Electoral Commission under Part 20 of the Commonwealth
Electoral Act 1918.
(5) For the purposes of this section—
(a) a
reference to an amount includes a reference to the value of a gift, loan or
bequest; and
(b) amounts
received at a time when an entity was not an associated entity are not be counted;
and
(c) returns
are not to include lists of party membership; and
(d) the
regulations may require greater detail to be provided in returns than is
otherwise required by this section, including further breaking down of the
total amounts of receipts.
Division 5—Related
matters
130O—Public
inspection of returns
(1) The
Electoral Commissioner must keep at his or her principal office each return
furnished to the Commissioner under this Part.
(2) Subject
to this section, a person is entitled to inspect a copy of a return, without
charge, during ordinary business hours at the principal office of the Electoral
Commissioner.
(3) Subject
to this section, a person is entitled, on payment of a fee determined by the
Electoral Commissioner to be the cost of copying, to obtain a copy of a return.
(4) A
person is not entitled to inspect or obtain a copy of a return until the end of
8 weeks after the day before which the return was required to be furnished to
the Electoral Commissioner.
130P—Records
to be kept
If—
(a) a
person makes or obtains a document or other thing that is or includes a record
relating to a matter particulars of which are or could be required to be set
out in a return under this Part relating to an election; and
(b) the
record is not a record that, in the normal course of business or
administration, would be transferred to some other person,
the person must retain that record for at least 5 years commencing
on the polling day for that election.
130Q—Investigation
etc
(1) In this section—
authorised officer means a person authorised by the Electoral Commissioner
under subsection (2).
(2) The
Electoral Commissioner may, by instrument in writing signed by the Electoral
Commissioner, authorise a person or a person included in a class of persons to
perform duties under this section.
(3) If an authorised officer has reasonable
grounds to believe that a person is capable of producing documents or other
things or giving evidence relating to a contravention, or possible
contravention, of this Part, or relating to matters that are set out in, or are
required to be set out in, a return, the authorised officer may, by notice
served personally or by post on that person, require that person—
(a) to
produce, within the period and in the manner specified in the notice, such
documents or other things as are referred to in the notice; or
(b) to
appear, at a time and place specified in the notice, before the authorised
officer to give evidence, either orally or in writing, and to produce such
documents or other things as are referred to in the notice.
(4) An
authorised officer may require any evidence that is to be given to him or her
in compliance with a notice under subsection (3) to be given on oath or
affirmation and for that purpose the authorised officer may administer an oath
or affirmation.
(5) A
person must not, without reasonable excuse, refuse or fail to comply with a
notice under subsection (3) to the extent that the person is capable of
complying with the notice.
(6) If—
(a) an
authorised officer has reasonable grounds for suspecting that there may be, at
any time within the next following 24 hours, on any land or on or in any
premises, vessel, aircraft or vehicle, a document or other thing that may
afford evidence relating to a contravention of this Part; and
(b) the
authorised officer has reasonable grounds to believe that, if a notice under
this section were issued for the production of the document of other thing, the
document or other thing might be concealed, lost, mutilated or destroyed,
the authorised officer may make an application to a magistrate for
the issue of a warrant under subsection (7).
(7) Subject to subsection (8), if an
application under subsection (6) is made by an authorised officer to a
magistrate, the magistrate may issue a warrant authorising the authorised
officer or any other person named in the warrant, with such assistance as the
officer or person thinks necessary and if necessary by force—
(a) to
enter on the land or on or into the premises, vessel, aircraft or vehicle;
(b) to
search the land, premises, vessel, aircraft or vehicle for documents or other
things that may afford evidence relating to a contravention of this Part, being
documents or other things of a kind described in the warrant; and
(c) to
seize any documents or other things of the kind referred to in
paragraph (b).
(8) A magistrate may not issue a warrant under
subsection (7) unless—
(a) an
affidavit has been furnished to the magistrate setting out the grounds on which
the issue of the warrant is being sought; and
(b) the
authorised officer applying for the warrant or some other person has given to
the magistrate, either orally or by affidavit, such further information (if
any) as the magistrate requires concerning the grounds on which the issue of
the warrant is being sought; and
(c) the
magistrate is satisfied that there are reasonable grounds for issuing the
warrant.
(9) If
a magistrate issues a warrant under subsection (7), the magistrate must
state on the affidavit furnished in accordance with subsection (8) which
of the grounds specified in that affidavit he or she has relied on to justify
the issue of the warrant and particulars of any other grounds so relied on.
(10) A warrant issued under subsection (7)
must—
(a) include
a statement of the purpose for which the warrant is issued, which must include
a reference to the contravention of this Part in relation to which the warrant
is issued; and
(b) state
whether entry is authorised to be made at any time of the day or night or
during specified hours of the day or night; and
(c) include
a description of the kind of documents or other things authorised to be seized;
and
(d) specify
a date, not being later than one month after the date of issue of the warrant,
on which the warrant ceases to have effect.
(11) If a document or other thing is seized by a
person pursuant to a warrant issued under subsection (7)—
(a) the
person may retain the document or other thing for so long as is reasonably
necessary for the purposes of the investigation to which the document or other
thing is relevant; and
(b) when
the retention of the document or other thing by the person ceases to be
reasonably necessary for those purposes, the person must cause the document or
other thing to be delivered to the person who appears to be entitled to
possession of it.
130R—Inability
to complete returns
(1) If a person who is required to furnish a
return under this Part considers that it is impossible to complete the return
because he or she is unable to obtain particulars that are required for the
preparation of the return, the person may—
(a) prepare
the return to the extent that it is possible to do so without those
particulars;
(b) furnish
the return so prepared; and
(c) give
to the Electoral Commissioner notice in writing—
(i) identifying
the return; and
(ii) stating
that the return is incomplete by reason that he or she is unable to obtain
certain particulars; and
(iii) identifying
those particulars; and
(iv) setting
out the reasons why he or she is unable to obtain those particulars; and
(v) if
the person believes, on reasonable grounds, that another person whose name and
address he or she knows can give those particulars—stating that belief and the
reasons for it and the name and address of that other person,
and a person who complies with this subsection is not, by reason
of the omission of those particulars, to be taken, for the purposes of this
Part, to have furnished a return that is incomplete.
(2) If
the Electoral Commissioner has been informed under subsection (1) or (3)
that a person can supply particulars that have not been included in a return,
the Electoral Commissioner may, by notice in writing served on that person,
require the person to furnish to the Electoral Commissioner, within the period
specified in the notice and in writing, those particulars and, subject to
subsection (3), the person must comply with that requirement.
(3) If a person who is required to furnish
particulars under subsection (2) considers that he or she is unable to
obtain some or all of the particulars, the person must give to the Electoral
Commissioner a written notice—
(a) setting
out the particulars (if any) that the person is able to give; and
(b) stating
that the person is unable to obtain some or all of the particulars; and
(c) identifying
the particulars the person is unable to obtain; and
(d) setting
out the reasons why the person considers he or she is unable to obtain those
particulars; and
(e) if
the person believes, on reasonable grounds, that another person whose name and
address he or she knows can give those particulars—setting out the name and
address of that other person and the reasons why he or she believes that that
other person is able to give those particulars.
130S—Amendment
of returns
(1) If
the Electoral Commissioner is satisfied that a return under this Part contains
a formal error or is subject to a formal defect, the Electoral Commissioner may
amend the return to the extent necessary to correct the error or remove the
defect.
(2) A
person who has furnished a return may request the permission of the Electoral
Commissioner to make a specified amendment of the return for the purpose of
correcting an error or omission.
(3) A request under subsection (2) must—
(a) be
by notice in writing signed by the person making the request; and
(b) be
lodged with the Electoral Commissioner.
(4) If—
(a) a
request has been made under subsection (2); and
(b) the
Electoral Commissioner is satisfied that there is an error in, or omission
from, the return to which the request relates,
the Electoral Commissioner must permit the person making the
request to amend the return in accordance with the request.
(5) If
the Electoral Commissioner decides to refuse a request under
subsection (2), the Electoral Commissioner must give to the person making
the request written notice of the reasons for the decision and the decision is
reviewable under Part 12 Division 1.
(6) The
amendment of a return under this section does not affect the liability of a
person to be convicted of an offence against this Part arising out of the
furnishing of the return.
130T—Offences
(1) A person who fails to furnish a return that
the person is required to furnish under this Part within the time required by
this Part is guilty of an offence.
Maximum penalty:
(a) in
the case of a return required to be furnished by the agent of a political party—$10 000;
(b) in
any other case—$2 500.
(2) A person who furnishes a return or other
information—
(a) that
the person is required to furnish under this Part; and
(b) that
contains a statement that is, to the knowledge of the person, false or
misleading in a material particular,
is guilty of an offence.
Maximum penalty: $5 000.
(3) A person who furnishes to another person
who is required to furnish a return information—
(a) that
the person knows is required for the purposes of that return; and
(b) that
is, to that person's knowledge, false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $5 000.
(4) A person who, otherwise than as referred to
in this section, contravenes, or fails to comply with, a provision of this Part
is guilty of an offence.
Maximum penalty: $5 000.
(5) If a person commits an offence against
another provision of this section by reason of the failure to furnish a return
or other information, or to do any other thing, within a particular period as
required under this Part—
(a) the
obligation to furnish the return or other information, or to do the other
thing, continues despite the expiration of the period; and
(b) the
person is liable, in addition to the penalty otherwise applicable to the
offence, to a penalty for each day during which the failure continues of not
more than an amount equal to one-fifth of the maximum penalty prescribed for
the offence; and
(c) if
the failure continues after the person is convicted of the offence, the person
is guilty of a further offence against that provision and liable, in addition
to the penalty otherwise applicable to the offence, to a penalty for each day
during which the failure continues after the conviction of not more than an
amount equal to one-fifth of the maximum penalty prescribed for the offence.
(6) An
allegation in a complaint that a specified person had not furnished a return of
a specified kind as at a specified date will be taken to have been proved in
the absence of proof to the contrary.
130U—Non-compliance
with Act does not affect election
A failure of a person to comply with a provision of this Part in
relation to an election does not invalidate that election.
Schedule 1—Transitional provisions
In this Schedule—
principal Act means the Electoral Act 1985.
(1) No
return required to be furnished under Part 13A of the principal Act (as
inserted by this Act) need contain any details relating to any gifts made or
received, or any expenditure incurred, before the commencement of this
subclause.
(2) No return is required to be furnished under Part 13A Division 4 of the principal Act (as inserted by this Act) in respect of a financial year commencing before the commencement of this subclause.