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Electoral Reform and Accountability Amendment Bill 2011 (Qld)

The Electoral Reform and Accountability Amendment Bill 2011 (Qld) (the Bill) was introduced into the Queensland Legislative Assembly by the Hon PT Lucas MP, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State, on 7 April 2011, implementing the proposals outlined in the Queensland Government’s December 2010 White Paper, Reforming Queensland’s Electoral System, which was open for public consultation until 18 February 2011. The focus of this e-Research Brief is on the Bill’s proposed amendments to the Electoral Act 1992 (Qld) seeking, among other things, to cap amounts donors can donate to Queensland registered political parties ($5,000 per donor per year), or to candidates or third parties ($2,000 per donor per year); to cap the amount that political parties, candidates and third parties can spend on campaigning; to require the establishment of dedicated State campaign accounts; to require third parties to register with the Electoral Commission Queensland if they spend over $10,000 in an election campaign; and to provide for increased public funding to political parties and candidates for elections and administrative funding for political parties and independent members.

Bill: Electoral Reform and Accountability Amendment Bill 2011 (Qld)

Date of introduction:

7 April 2011

Portfolio: Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State

Hansard Reference Second Reading Speech:

Queensland Parliamentary Debates, 7 April 2011, pp 1119-1120

Nicolee Dixon

e-Research Brief 2011/05

May 2011

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© Queensland Parliamentary Library, 2011

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CONTENTS

Introduction ............................................................................................................................................................. 1

Political Donations and Electoral Campaign Funding ............................................................................................ 1

Electoral Reform and Accountability Amendment Bill 2011 (Qld) .......................................................................... 2

Cap on Political Donations.................................................................................................................................. 2

What is a Political Donation?........................................................................................................................... 2

Amount of the Donation Cap ........................................................................................................................... 4

Cap on Political Donations and Offence Provisions........................................................................................ 4

Prohibitions on Receipt of Certain Gifts and Loans ........................................................................................ 5

Disclosure of Donations and Gifts ................................................................................................................... 6

State Campaign Accounts .................................................................................................................................. 7

Campaign Expenditure ....................................................................................................................................... 8

Offence Provisions .......................................................................................................................................... 9

Disclosure Obligations..................................................................................................................................... 9

Election Funding ............................................................................................................................................... 10

Administrative Expenditure Funding.............................................................................................................. 11

Enforcement Provisions .................................................................................................................................... 11

Offence and Other Provisions Regarding Returns ........................................................................................... 12

Other Australian Jurisdictions............................................................................................................................... 12

New South Wales.............................................................................................................................................. 12

Northern Territory.............................................................................................................................................. 13

Western Australia.............................................................................................................................................. 13

Australian Capital Territory ............................................................................................................................... 13

Victoria .............................................................................................................................................................. 13

Tasmania .......................................................................................................................................................... 14

South Australia.................................................................................................................................................. 14

Commonwealth ................................................................................................................................................. 14

Links to Further Reading ...................................................................................................................................... 15

Bill & Accompanying Material ........................................................................................................................... 15

Act Amended..................................................................................................................................................... 15

White Paper ...................................................................................................................................................... 15

Ministerial Media Statements............................................................................................................................ 15

Departmental Website....................................................................................................................................... 15

Opposition Bill ................................................................................................................................................... 15

Other Articles .................................................................................................................................................... 15

Newspaper Articles ........................................................................................................................................... 15

Endnotes............................................................................................................................................................... 16

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INTRODUCTION The Electoral Reform and Accountability Amendment Bill 2011 (Qld) (the Bill) was introduced into the Queensland Legislative Assembly by the Hon PT Lucas MP, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State, on 7 April 2011, implementing the proposals outlined in the Queensland Government’s December 2010 White Paper, Reforming Queensland’s Electoral System, which was open for public consultation until 18 February 2011. The focus of this e-Research Brief is on the Bill’s proposed amendments to the Electoral Act 1992 (Qld) seeking, among other things, to cap amounts donors can donate to Queensland registered political parties ($5,000 per donor per year), or to candidates or third parties ($2,000 per donor per year); to cap the amount that political parties, candidates and third parties can spend on campaigning; to require the establishment of dedicated State campaign accounts; to require third parties to register with the Electoral Commission Queensland if they spend over $10,000 in an election campaign; and to provide for increased public funding to political parties and candidates for elections and administrative funding for political parties and independent members.

In his Second Reading Speech, introducing the Bill into the Parliament, the Deputy Premier said (p 1119):

Queenslanders must be able to have confidence in our democratic system of government. Our electoral system must be free from undue influence associated with large political donations. Our electoral system is built on the foundation that each person should carry equal sway – one person, one vote. Those with the means to make large donations should not be permitted to leverage more from the political process than everyday Queenslanders.

In addition, but not covered in this paper, the Bill aims to improve enrolment and voting procedures such as allowing 16 or 17 year olds to provisionally enrol to vote, enabling ordinary pre-poll voting at declared pre-poll voting offices; requiring postal votes to be in an approved form; and allowing persons who enrol or update enrolment details after the issue of election writs to make a provisional declaration vote.1

POLITICAL DONATIONS AND ELECTORAL CAMPAIGN FUNDING In 2009, the Queensland Government embarked on reforms seeking to improve and strengthen the Queensland system of integrity and accountability, building upon various legislative and administrative developments over the 20 years following the Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct. The August 2009 Integrity and Accountability in Queensland Discussion Paper, inviting public input into enhancement of Queensland’s integrity and accountability framework, noted (in Part 1) that, in the electoral reform context, a number of policy and legislative changes had progressively imposed new standards of honesty and accountability.2

Over recent years, amendments to the Electoral Act 1992 (Qld) have included implementing requirements for political parties and candidates to meet new honesty and accountability standards (in 2002) and a requirement that all political donations totalling more than $100,000 from a single donor in any 6 month period be disclosed within 14 days of the donation taking the total beyond $100,000 (in 2008). Other reforms include changes to the rules governing disclosure of political donations so that those over $1,000 (rather than over $1,500, as previously) must be publicly disclosed; a ban on Ministers and Parliamentary Secretaries from holding shares (2008); post-separation employment restrictions on former Ministers, Parliamentary Secretaries, Ministerial staff and senior public servants, limiting their ability to lobby government on matters using information acquired in their former roles; and the publication of the Queensland Contact with Lobbyists Code and Register of Lobbyists (2009). There is also more recent commitment to measures such as banning success fees to lobbyists and stopping Government MPs from attending exclusive political fundraising events attended by members of the private sector.3

The Discussion Paper (p 14) noted that the Commonwealth Government was considering electoral reforms, including political donations and expenditure, but stated that although the Queensland Government supported nationally consistent reforms of donation laws, if significant progress towards such reforms had not occurred by July 2010, the Queensland Government was committed to changing political donation laws at a State level. As no Commonwealth legislation had yet been developed, the Queensland Government released a White Paper, Reforming Queensland’s Electoral System (White Paper), in December 2010. The White Paper stated the Government’s intentions regarding legislative reforms governing political donations and funding and, after a two month public comment period, was followed by the introduction of the Electoral Reform and Accountability Amendment Bill 2011 (Qld) (the Bill) on 7 April 2011.

The main types of donors to political parties tend to be businesses, gaming operators, service providers, developers and trade unions.4 It has been observed that unions will tend to provide donations to the Labor Party while individuals might donate to a particular party based on ideological reasoning, although this is more evident in countries such as the USA where there seems to be a greater policy/ideology divergence than in Australia where the major parties seem to converge on many issues. It also seems that businesses divide their

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donations fairly evenly between the major parties in the belief that they need to work with whichever party is in government.5

In a media statement announcing the introduction of the Bill, the Deputy Premier said that those ‘with the means to make large donations should not be permitted to leverage more from the political process than everyday Queenslanders. Everyone should have the ability to play an active part in political life, not just wealthy businessmen or business interests like big tobacco. … These reforms … will apply to union donations as well as individual or company donations’.6 The Explanatory Notes accompanying the Bill also state (p 1) that the reforms attempt to limit any potential for undue influence being exercised by any one donor or lobby group, or any perception thereof.

An article in the Sunday Mail on 3 April 2011 reported that LNP President, Mr Bruce McIver, said that the LNP has ‘only got one (big donor, Mr [Clive] Palmer), Labor has the unions’. The article commented that, under the proposals, Mr Palmer would have to register as a third party and would not be able to provide more than $75,000 for a single electorate or $500,000 state-wide.7

ELECTORAL REFORM AND ACCOUNTABILITY AMENDMENT BILL 2011 (QLD) The Electoral Reform and Accountability Amendment Bill 2011 (Qld) (the Bill) proposes to insert a proposed new Part 9A into the Electoral Act 1992 (Qld) (the Act) to, among other things, cap political donations and campaign expenditure, and to provide for increased public funding for State elections. Provisions relating to campaign funding, disclosure of donations and electoral expenditure, rules about certain gifts and loans, returns, powers of authorised officers and enforcement matters are currently contained in a Schedule to the Act which mirrors equivalent provisions in the Commonwealth Electoral Act 1918. As many of the Schedule provisions are intended to be added to and amended, the Bill seeks to move them into the body of the Act. The White Paper (p 5) comments that ‘New South Wales has recently enacted new campaign finance laws. In the interests of consistency, many aspects of the Queensland model reflect the New South Wales reforms’.

Political parties operate across state and federal levels and donations provided to a party at State level could be used to fund a Commonwealth election campaign (and vice versa). It is possible that a donations cap imposed by the Queensland Parliament could be seen as hindering the ability of a State political party to fund candidates in Commonwealth elections and, thereby, unconstitutional if it is found to threaten the existence of the Commonwealth as a separate constitutional entity.8 Due to possible constitutional restraints on the ability of a State Parliament to impose restrictions on donations, the cap will apply only to donations for State electoral campaign purposes, not to those at the Commonwealth level.

While this e-Research Brief focuses on the proposed new laws to cap political donations and electoral expenditure and to increase funding to political parties and candidates, it will briefly cover matters which are currently provided for in the Schedule to the Act and which are intended to be relocated, with or without modification, to the body of the Act.

CAP ON POLITICAL DONATIONS The Electoral Act 1992 (Qld) (the Act) currently has few limitations on gifts or donations to registered political parties, candidates and third parties. Instead, the Act (in Division 4 of the Schedule) imposes a number of disclosure requirements on donors, political parties and candidates in respect of donations or gifts of $1,000 or more as well as reporting obligations regarding other types of donations or gifts. There is also a requirement, where a donor makes a contribution of more than $100,000 within a 6 month period to a political party, that the donation be disclosed by the donor and the party to the Electoral Commission Queensland (ECQ) within 14 days of the donation bringing the total over $100,000.9

The Bill seeks to insert a proposed new Part 9A, Division 6 into the Act to set a cap on political donations at $5,000 per donor per year to Queensland registered political parties10 and at $2,000 per donor per year to candidates or to third parties for use in their campaigns at state level. The cap is sought to apply from 1 January 2011, which the Deputy Premier said was to ensure that ‘there is not a rush of large donations given in anticipation of the bill being enacted … [as this] would thwart the aim of the reforms.’11

What is a Political Donation?

The proposed definition of ‘donor’ is a ‘person’ making a gift to a registered political party, candidate or third party intended to be used for campaign purposes during the capped expenditure period for an election (new s 177F). It will, by virtue of the broad meaning of ‘person’ under the Acts Interpretation Act 1954 (Qld), include individuals and companies.12 As noted by the Deputy Premier (Second Reading Speech, p 1119), it will include unions. A gift made by an anonymous donor will not be a political donation.

The political donations sought to be targeted by the cap are those intended to be used for election campaign purposes during the capped expenditure period. The ‘capped expenditure period’ is defined (new s 177A) as:

for the first election after assent to the Bill, the period beginning the day after assent and ending at 6pm on the election polling day;

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for subsequent elections, the period starting on the earlier of the day that is 2 years after the poll for the last election or the day of issue of the writ for the election; and ending at 6pm on the polling day for the election;

for a by-election, it will be the period from the day of issue of the writ for the by-election to the polling day.

A ‘political donation’ is proposed to be defined as (new s 177F):

a gift to a registered political party, candidate or third party accompanied by a statement13 from the donor that the gift is intended for use for campaign purposes during the capped expenditure period for an election;

a gift made to an entity that was used or intended to be used by the entity to make a gift to a registered political party for the previously mentioned campaign purposes (thus catching donations in excess of the cap made to a party via an intermediary);

a disposition of property to a registered political party from another branch or division of the party or a related political party stated (in writing and given to the party within 14 days) to be intended for use for campaign purposes during the capped expenditure period (meaning that transfers of funds from related parties to a Queensland political party’s State campaign account in excess of the cap cannot be used for State campaigning);

a disposition of property to a candidate in an election from a federal or interstate branch or division of a political party that is stated (in writing and given to the candidate within 14 days) to be intended for use for campaign purposes during the capped expenditure period.

A ‘gift’ is defined in s 177AD as, in essence, a disposition of property to another person (other than by will) made without adequate consideration. It will include:

the provision of a service (other than volunteer labour) for no or for inadequate consideration. The Electoral Reform White Paper (White Paper) (p 11) explains that inclusion of ‘in kind gifts’ as a donation will stop the giving, for campaigning purposes, items worth more than the cap, such as accommodation, travel in a private aeroplane, food, advertising, IT facilities and so on; and

uncharged interest on a loan (which is, essentially, a loan not requiring interest to be paid at the commercial rate).

A ‘disposition of property’, under new s 177A, is defined broadly to include things such as the creation of a trust in property; a grant of a lease or licence or creation of an interest in property; the release of a debt; a transaction entered into by a person to diminish the value of that person’s own property and to increase the value of another person’s property.

A ‘political donation’ will not include (by virtue of being excluded from the definition of ‘gift’ – see s 177AD(4)):

a fundraising contribution of $200 or less or the first $200 of the fundraising contribution where the contribution is an amount of more than $200. A ‘fundraising contribution’ is an amount paid by a person as a contribution, entry fee or other payment to entitle the person or another person to participate in or otherwise obtain a benefit from a fundraising venture or function. Examples include the cost of a raffle ticket or amount paid for an item at an auction. If, for instance, the cost of raffle tickets in one raffle is more than $200, the amount exceeding $200 will be a political donation. As the White Paper notes (p 11), difficulties potentially arise with fundraising contributions because at least some of the payment for the event/ticket etc. is for a tangible return to the person, such as a dinner or a chance of a prize, hence the decision that any amount over $200 will be a donation. Thus, at the time of making the contribution, the person doing so will have to elect whether the money is for State campaigning purposes;

election funding under Part 9A, Division 4;

an annual political party membership fee paid by a person;

the provision of volunteer labour – usually provided by supporters during election campaigns – or the incidental or ancillary use of a vehicle or equipment that is ordinarily available for the volunteer’s personal use.

For the purposes of the cap, a ‘political donation’ (see also White Paper, p 11):

for a registered political party, will include (see new ss 177FC(4); 177FD(3)):

payments by a person other than the registered political party of electoral expenditure incurred or to be incurred by the registered political party or agreement by the person to make the payment;

the waiving of all or part of payment to a person by the registered political party of electoral expenditure incurred or to be incurred by the registered political party; or

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allowing an unpaid debt to be incurred. An ‘unpaid debt’ is (see new s 177FA) a debt incurred by the party for electoral expenditure that has remained unpaid for at least after 18 months after the return of the writ for the relevant election (including interest thereon that is foregone or written off) unless certain arrangements for repayment have been entered into; legal proceedings are on foot or there is a dispute about the amount owed; or the debt has been written off in accordance with normal accounting practices);

for a candidate, will include (see new ss 177FE(3); 177FF(3)):

payments by a person other than the candidate of electoral expenditure incurred or to be incurred by the candidate or agreement by the person to make the payment;

the waiving of all or part of payment to a person by the candidate of electoral expenditure incurred or to be incurred by the candidate; or

allowing an unpaid debt to be incurred;

for a third party, will include (see new ss 177FG(3); 177FH(3)):

payments by a person other than the third party of electoral expenditure incurred or to be incurred by the third party or agreement by the person to make the payment;

the waiving of payment to a person by the third party of electoral expenditure incurred or to be incurred by the third party; or

allowing an unpaid debt to be incurred.

Amount of the Donation Cap

The formula for calculating the applicable donation cap (cap) is set out in the new s 177FB. The cap will be global and cumulative, enabling donations to be made to various candidates up to the amount of the cap. It will also be indexed, the indexation formula allowing for inflation.14

For the first financial year, the cap on donations to a registered political party will be $5,000 for the part of the financial year from 1 January 2011 to 30 June 2011 and the amount calculated in accordance with the aforementioned formula for subsequent financial years.

For a candidate or third party, it will be $2,000 for the part of the financial year 1 January 2011 to 30 June 2011 and the amount calculated in accordance with the aforementioned formula for subsequent financial years.

Cap on Political Donations and Offence Provisions

The intention of the provisions regarding political donations is to prevent donors from donating, and political parties, candidates and third parties from receiving, in any financial year, political donations in excess of the applicable donation cap. In each case, the concept of a ‘political donation’ is extended to include payment or waiver of payment of electoral expenditure or allowing an unpaid debt to be incurred (as explained earlier).

In the cases where an agent15 of a registered political party, candidate or registered third party or a third party itself receives a political donation, the new s 177FI obliges the agent or third party, as the case may be, to give the donor, within 14 days, a receipt for the donation which includes a prescribed statement that it is an offence to make a political donation in excess of the cap.

Donors

The proposed s 177FC provides that a person must not, in a financial year, make a political donation in excess of the cap to a registered political party16 or make two or more donations to the same registered political party that, in total, are more than the cap.

Under the proposed s 177FE, a person must not, in a financial year:

make a political donation in excess of the cap to a candidate; or:

make two or more donations to the same candidate; or to two or more candidates endorsed by the same registered political party; or

make political donations to two or more independent candidates (i.e. unendorsed candidates)

that, in total, are more than the cap.

The proposed s 177FG provides that a person must not, in a financial year, make a political donation in excess of the cap to a third party; or make two or more donations to the same third party that, in total, are more than the cap.

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A contravention of any of the above provisions attracts a fine of up to $10,000 for an individual and up to $50,000 for a corporation.17 The cap seeks to have extra-territorial operation to apply to donors who, at the time of donating, were outside of Queensland.

Political Parties, Candidates and Third Parties

The proposed new ss 177FD, 177FF and 177FH seek to provide that a registered political party, candidate or third party, as the case may be, or a person acting on their respective behalf, must not, in a financial year, accept a political donation in excess of the cap from a donor; or if the total of that donation plus any other previous political donations made by the donor in the financial year will be more than the cap. The maximum penalty for breach is a fine of $20,000 (or up to $100,000 for a corporation). However, if the recipient of the political donation did not know that its acceptance would mean exceeding the cap, no offence is committed. Under the new s 177ML, if a person is convicted of an offence involving unlawfully accepting a donation and the maximum penalty is the greater of either an amount equal to twice the donation amount or 200 penalty units, the amount can be recovered by the State.

A ‘third party’ is an entity other than a registered political party, associated entity or a candidate. Essentially, third parties are persons or organisations that incur expenditure for political purposes and, as noted in the White Paper (p 14), they do play an important role in our democracy by ensuring that interests of various parts of the community are represented in public debate. They might also broaden the issues beyond those canvassed by political parties. A donor is not a third party as the donor gives money directly to political parties or candidates. An example of a third party is possibly GetUp!, an organisation established to increase democratic participation and which spends to advertise. Other examples might be conservation, residential and industrial bodies.18

The White Paper observes (p 14) that, if no restrictions were placed upon third parties’ receipts of political donations or their electoral expenditure, the caps on political parties and candidates could be easily circumvented by parties and candidates setting up outside bodies to engage in unrestricted expenditure. Further (p 15), there would be potential for donors to give large sums in excess of the cap to third parties to enable them to run parallel election campaigns. Accordingly, the Bill proposes to regulate third parties via imposing a donation cap as well as a cap on electoral expenditure. Donations received up to the amount of the cap must be deposited into a State campaign account if they are intended by the donor to be used for campaign purposes. In his Second Reading Speech introducing the Bill, the Deputy Premier said (p 1120) that third parties do have a legitimate right to have a say about particular issues and the new laws recognise this while ensuring appropriate regulation. Further, as noted below, third parties will be required to register with the ECQ if they spend more than $10,000 on campaign expenditure state-wide or more than $2,000 in a single electorate.

Prohibitions on Receipt of Certain Gifts and Loans

At present, Division 4A of the Schedule to the Act sets out the requirements concerning gifts and loans to registered political parties and candidates. The provisions will now be relocated within the body of the Act as a new Part 9A, Division 8. The main aspects are:

it will be unlawful for an entity to receive a gift of foreign property (money or property other than Australian money or property as determined in accordance with new s 177HB) if it is received by or on behalf of a registered political party or a candidate. A table in the new s 177HC sets out the consequences of unlawful receipt – specified persons must pay an amount equal to the gift’s value to the State. For example, if a candidate is the recipient, the amount equal to the gift’s value is payable by the candidate and his or her agent. The foregoing prohibition will not apply to any gift returned within 6 weeks after receipt (s 177HA). There has been some concern about foreign donations to Australian political parties and a recent move at the Commonwealth level to prohibit such donations (which are not currently so regulated) was explained as being to remove a perception that foreign donors could exert influence over the Australian political process.19

If a registered political party that is a corporation; a candidate or a corporate associated entity (or person acting on behalf of the foregoing bodies) receives such a gift and doing so is unlawful, the new s 177MA(11) proposes that an offence is committed attracting up to one year’s imprisonment or a fine of up to $24,000. Pursuant to the proposed s 177MA(12), if a non-corporate registered political party or a non-corporate associated entity (or person acting on its behalf) unlawfully receives a gift, the same penalties apply (but, no offence is committed if the person does not know of the relevant circumstances or he or she has taken all reasonable steps to avoid the occurrence of those circumstances);

it will unlawful to accept an anonymous gift made to, or for the benefit of, the party by another person, worth at least $200. The same restriction applies in relation to candidates. If an anonymous gift is received unlawfully, an amount equal to its amount/value is payable by the specified recipient to the State;

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it will be unlawful for a political party or candidate (or person acting on behalf of the political party or the candidate) to receive a loan of $1,000 or more from an entity other than a financial institution unless the recipient keeps a record of the loan’s terms and conditions and details of the lender. Again, if the loan is received unlawfully, an amount equal to its amount/value is payable to the State.

Disclosure of Donations and Gifts

At present, the requirements for disclosure of donations are contained in Division 4 of the Schedule to the Act.

Many of the requirements are proposed to be restated or amended and included within the body of the Act as a proposed new Part 9A, Division 7. While many of the following disclosure rules already exist, it is worth very briefly outlining the main features of the intended complete list in new Division 7, the provisions of which (new s 177G-177GF) should be referred to for more detail. The disclosure obligations will not apply to any gift returned within 6 weeks after receipt, unless it is a gift of foreign property, but any returns lodged must state that the gift was returned.

In some of the situations below it will not matter if the giver of the donation or gift is outside of Queensland.

Candidates in an Election

Candidates (via their agents) must lodge a return with the ECQ:

within the prescribed time after election polling day (which is 15 weeks under the current provisions) setting out the details specified in new s 177GA(1), (2) (particularly the name and address of the donor or giver) during the disclosure period.20 Those details are not required if the gift (other than a political donation) was made in a private capacity to a candidate for his or her personal use or if the amount/value of the gift and all other gifts made by the person in the relevant period is less than $1,000;

within 15 weeks after the polling day covering all loans received from a person other than a financial institution during the disclosure period. The return must state the total value of the loans; number of lenders and, for each loan of $1,000 or more, more specific details about the date it was made, details of the source of the loan, and the terms and conditions of each loan (see new s 177GB).

Donors Donating to Political Parties Generally

If, in a reporting period (i.e. the first 6 months of a financial year or a full financial year (new s 177A)), a person makes political donations or other gifts totalling $1,000 or more to the same registered political party, he or she must lodge a return with the ECQ within 8 weeks after the end of the reporting period disclosing all donations or gifts made to that party during the reporting period (the reporting period is generally 6 months). The return has to state the amount of the donation or gift, the date it was made; and the name and address of the political party receiving it. If the donation or gift is made to any person or body with the intention of benefiting a certain political party, the person is taken to have directly made that donation or gift to the party (see new s 177GE).

If two or more political parties are related to each other and at least one is a registered political party, the disclosure requirement applies as if those parties together are a single registered political party and the donation or gift was to that single party. However, the disclosure obligation will not apply to gifts or donations made to a political party by: a registered political party; or an associated entity; or an election candidate.

On receipt of the donation or gift, the political party must inform the donor of the obligation to lodge a return and failing to do so may incur a fine of up to $2,000. Other rules about returns to be lodged by donors where the gift to a party is enabled by a gift to the donor of $1,000 or more are set out in new s 177GE(8)-(10).

Special Reporting of Large Gifts

If, in a special reporting period (6 month period), gifts made by one person to a registered political party21 reach $100,000, on each occasion this occurs either since the start of the special reporting period or since the last occasion during that period that the gifts reached $100,000, an additional separate return must be given to the ECQ within 14 days disclosing the gifts. A return must be lodged by each of: the donor; the registered political party receiving the gifts; and the associated entity if it received any part of the gifts. The return has to state the amount of the donation or gift, the date made; and the name and address of the party receiving it. If the donation or gift is made to any person or body with the intention of benefiting a certain political party, the person is taken to have directly made it to the party.

The obligation will not apply to gifts or donations made to a political party by any of: a registered political party; an associated entity; or an election candidate. On receipt of the donation or gift, the political party must inform the donor about the need to lodge a return and failing to do so may render the party liable to a fine of up to $2,000 (up to $10,000 for a corporation). Other rules about special returns lodged are set out in new s 177GF.

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Third Parties

If a third party receives a political donation during the disclosure period or incurs expenditure for a political purpose (e.g. political expenditure for an election), the third party has 15 weeks after the polling day within which to lodge a return stating the relevant details (which are similar to the details required for candidates’ returns: see new s 177GC(5)) of all gifts received during that period, being gifts used by the third party to enable the third party to incur political expenditure or to reimburse the third party for such, where the amount/value of each is at least $1,000.22 The details required include the amount/value of the gift, date it was made and details of the source).

A third party incurs political expenditure if it is by way of things specified in new s 177GC(5) such as radio or television publication of electoral matter; making a gift to a political party or candidate; public expression of a view on an election issue; or making a gift to a person on the understanding that the person or someone else will apply, directly or indirectly, the gift for the foregoing purposes.

If a third party makes a political donation or other gift of $1,000 or more during the disclosure period to any election candidate (or to a person with the intention of benefiting the candidate), the third party has 15 weeks after the polling day within which to give the ECQ a return stating the required details of such gift or donation. The required details are similar to those for candidates’ returns (see new s 177GD(5)). Upon receiving the gift or donation, the candidate must inform the third party of the requirement to lodge the aforementioned return or a fine of up to $2,000 (up to $10,000 for a corporation) can be incurred.

Returns by Registered Political Parties and Associated Entitles

The new Part 9A, Division 11 seeks to impose a requirement for agents of registered political parties to lodge a return with the ECQ every 6 months setting out (for the reporting period) the total amounts received by the party; the total amount of political donations received; and the total of all amounts paid by the party. If the sum of all amounts received, or the sum of all amounts paid is $1,000 or more, the return must include the particulars set out in new s 177KC and s 177KD. Similar obligations apply to debts of $1,000 or more (see new s 177KE). Every 6 months, the financial controller of an associated entity must lodge a return setting out the similar information for gifts and loans (see s 177KF). The above requirements do not apply to a gift returned within 6 weeks of receipt unless it is a gift of foreign property. If the gift is so returned, there must be a statement to that effect made in the return (new s 177KA).

STATE CAMPAIGN ACCOUNTS Agents of Queensland registered political parties, candidates and registered third parties and third parties that receive a political donation will need to keep dedicated State campaign accounts under the proposed Part 9A, Division 3 (see new ss 177C-177CC). Political donations intended for use in State election campaign purposes must be paid into this State campaign account. Further, it is only from this account that State campaign expenditure can be made. Political parties and candidates will only be permitted to accept a donation in excess of the donation cap if the excess amount is paid into a general administration account. Monies out of general administration accounts must not be used for State election campaigning; only for general administration purposes or for Commonwealth election campaigns.23 A contravention attracts a fine of up to $20,000.

The only payments that can be placed into the State campaign account by the agent of a political party or candidate (or he or she can be fined up to $10,000 unless all reasonable steps are taken to immediately withdraw the payment from the account) are:

a political donation not in excess of the cap (as explained above, in the opening paragraph to this Section);

an amount of election funding (dealt with later in this e-Research Brief) paid by the ECQ under Part 9A, Division 4, including a payment made to a registered political party at the direction of a candidate;

an amount contributed by the candidate from his or her own personal funds;

dispositions to a political party or candidate by a person’s will;

an amount borrowed by the registered political party or candidate (however, an unpaid debt may amount to a political donation in certain circumstances and, as seen earlier, the new s 177HE will restrict loans that can be received by registered political parties, candidates and others (see also, new s 177CC imposing an obligation on the relevant agent to ensure the borrowed amount paid into the State campaign account is repaid from that account or a fine of up to $20,000 applies);

a return on a commercial investment if the amount invested was paid from the State campaign account (the White Paper notes (p 10) that returns on investments made using a party’s or candidate’s own capital would not suggest any undue influence; thus such returns will generally not be included in the donations cap).

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The White Paper notes, however, that measures will be implemented so that investment vehicles cannot be used to get around the cap;

a fundraising contribution of $200 or less or, where the ticket price of a single event or raffle tickets in one raffle is more than $200, the amount up to $200. Any excess will constitute a political donation;

individual registered political party annual membership fees of not more than $500. Such fees are excluded so that people are not discouraged from becoming members of political parties. However an amount over $500 will be considered a donation;

an amount that is a compulsory levy imposed by the registered political party under its constitution on elected members (see also, White Paper (p 10).

A third party must pay an amount of money, other than a donation that is not a political donation, into the third party’s State campaign account.

Use of funds from general administration accounts for State campaigning will be prohibited. All amounts received have disclosure requirements, considered earlier, whichever account they are paid into. The White Paper (p 10) notes that dedicated State campaign accounts will assist the ECQ in monitoring donations and claims for reimbursement of political expenditure.

CAMPAIGN EXPENDITURE As explained in the White Paper (p 11), caps on political donations will be complemented by caps on campaign expenditure in State election campaigns in order to reduce the reliance on political donations. Currently, the Act does not impose any cap on the amount that can be spent on election campaigns but there are a number of disclosure obligations on political parties, candidates, third parties and others which are proposed to continue to apply. In essence, expenditure on a State political campaign will be capped at $80,000 per seat contested by a political party; $50,000 per seat for endorsed candidates (for use only in his or her electorate); and $75,000 for each independent candidate.

The White Paper observes that the level of the expenditure cap is important because if it is too low, it may be seen as restricting political communication which might be unconstitutional. If it is set too high, it will make the cap meaningless. The proposed provisions of the Bill dealing with electoral expenditure are contained in Part 9A, Division 9.

At present, the Act defines ‘electoral expenditure’ quite widely for the purposes of Division 5 of the Schedule to include things such as expenditure on broadcasting, publication, production and display of political advertising, carrying out opinion polls or other research relating to the election. Under the Bill, it is proposed that a new s 177AB will be placed in the body of the Act to substantially reproduce the existing definition. It will cover expenditure incurred on, or a gift in kind that consists of, the aforementioned items, with reference to the ‘capped expenditure period’. The ‘capped expenditure period’ is defined in the new s 177A as (apart from the first general election after assent) the period starting on the earlier of the day that is 2 years after the polling day for the last election, or the day of the issue of the writ for the election and ending at 6pm on the polling day. For a by-election it will mean the period starting on the day the writ for the by-election is issued and ending on the day of the poll. The cap will apply whether or not expenditure is incurred before or during the capped expenditure period.

The new s 177IA seeks to set out the new ‘applicable expenditure cap’ on electoral expenditure for an election by registered political parties, candidates and third parties. It proposes to cover the first financial year following commencement of s 177IA and inserts a formula for calculating the amount for subsequent financial years, to be indexed annually by reference to increases in the consumer price index (CPI). The applicable expenditure cap (cap) amount for the first financial year after commencement is intended to be:

for registered political parties – $80,000;

for a candidate endorsed by a registered political party where the candidate is the sole candidate endorsed by the party or associated party24 for the electoral district –

for a general election – $50,000 (for a by-election – $75,000);

for a candidate endorsed by a registered political party where there is more than one candidate in the electoral district –

for a general election – the amount that is equal to $50,000 divided by the number of endorsed candidates in the electoral district;

for a by-election – the amount that is equal to $75,000 divided by the number of candidates endorsed by the party or associated party in the electoral district;

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for an independent candidate – $75,000. The Deputy Premier said that this amount is in recognition of the fact that independents do not have the resources of a political party;25

for a registered third party – $500,000 but no more than $75,000 in relation to a particular electoral district;

for an unregistered third party – $10,000 but no more than $2,000 in relation to a particular electoral district.

Pursuant to a new Part 9A, Division 12 a third party that intends to incur electoral expenditure for a capped expenditure period for an election may apply to the ECQ for registration as a third party for the election. The Division sets out the decision making process and other requirements. The applicable cap on the amount that can be spent on campaigning by a registered third party is $500,000 (or up to $75,000 in one electoral district) which is more than the cap for an unregistered third party ($10,000 (or up to $2,000 in one electoral district)).

Offence Provisions

The following prohibitions apply regarding the expenditure cap during the capped expenditure period for an election (new ss 177IC-177IH):

a registered political party must not incur electoral expenditure that is more than the applicable cap (here $80,000 for the first financial year) multiplied by the number of electoral districts contested by endorsed candidates (new s 177IC).26 The White Paper notes (p 12) that political parties will be able to choose how and where the expenditure is incurred – state-wide or in individual electorates (e.g. on communicating party information or information relating to certain candidates);

for a by-election, a registered political party must not incur electoral expenditure if the total of the expenditure and any electoral expenditure by the candidate it has endorsed for the by-election, party or an associated party for the by-election will be more than $75,000 (if the candidate is the only candidate endorsed for the electoral district); or $75,000 divided by the number of endorsed candidates (if one or more other candidates have been endorsed);

a candidate for an election must not incur electoral expenditure of more than $50,000 (if the candidate is the only one endorsed for the district); or $50,000 divided by the number of endorsed candidates (if one or more other candidates have been endorsed). An independent candidate must not exceed $75,000 in electoral expenditure. A separate offence is created, attracting a maximum fine of $20,000, if the candidate’s expenditure does not relate to his or her election to the electoral district in which he or she is nominated. The expenditure so relates if it is for other advertising or other material that explicitly mentions the candidate or the electoral district; is communicated to electors in the district; and is not mainly communicated to electors outside the district;

a registered third party must not incur electoral expenditure of more than $500,000 (but no more than $75,000 in relation to a particular electoral district); and the expenditure of an unregistered third party must not exceed $10,000 (but no more than $2,000 in relation to a particular electoral district);

The maximum penalty for contravention of the above expenditure cap is the greater of the amount equal to twice the amount by which the electoral expenditure incurred exceeded the cap; or $20,000 (or $100,000 for a corporation).

Agents of registered political parties, candidates or registered third parties must ensure that electoral expenditure is paid from the parties’, candidates’ or third parties’ State campaign account or a fine of up to $20,000 may be incurred (new s 177IB). This enables the ECQ to monitor adherence to the cap.27

Disclosure Obligations

At present, disclosure obligations for participants (i.e. registered political parties, candidates, other persons by whom or with the authority of whom electoral expenditure is incurred) in an election regarding electoral expenditure are found in Division 5 of the Schedule to the Act. Those provisions are proposed to be included in the body of the Act to form new Part 9A, Division 10. Given that there are few changes to existing rules, only a brief outline of the main features, highlighting any new requirements, is provided here. In essence these are:

a requirement for candidates, registered political parties and registered third parties to lodge a return with the ECQ stating details of all electoral expenditure for the capped expenditure period before the end of the ‘prescribed time’ (the White Paper (p 12) states that, for candidates, this will be within 15 weeks of polling day). Candidates can also lodge nil returns if no expenditure of the relevant kind was incurred;

an obligation on broadcasters to lodge a return with the ECQ showing details of all electoral advertisements broadcast during the capped expenditure period, including details of any charge made (stating if it was or was not at less than commercial rates), before the end of 8 weeks after polling day. The same requirement

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is imposed on publishers regarding all electoral advertisements published if the total amount of the charges for the advertising exceeds $1,000.

ELECTION FUNDING It has been suggested that one way to eliminate the perception of influence created by donors providing private money to political parties is by giving parties an opportunity to campaign without it. A way of doing so is through public election funding.28

As noted in the White Paper (pp 7, 12) and by the Deputy Premier in his Second Reading Speech (p 1120) the caps on political donations will reduce the financial resources that political parties and candidates have for election campaigning. So that the reforms limiting reliance on political donations for campaigning do not unduly impact on the implied constitutional guarantee of freedom of political communication, it is necessary to ensure that parties and candidates will be still be able to provide information to, and communicate with, the electorate about election matters. Accordingly, the Bill seeks to increase public funding for elections to help compensate for the reduction in private funding through donations and the like. The White Paper (p 12) comments that in places such as New South Wales and the United States of America, where donations are subject to restrictions, there is usually a corresponding funding entitlement.

At present, the provisions pertaining to election funding are found in Division 3 of the Schedule to the Act. A registered political party is entitled to election funding if, in relation to an endorsed candidate, the total number of first preference votes given for the candidate is at least 4% of the total number of formal first preference votes cast in the election. The amount of funding to which a party is currently entitled is the lesser of the amount worked out by multiplying the total eligible votes received by the election funding rate, indexed annually (which, according to the White Paper (p 12)) is currently $1.64455 for 2010-2011); or the amount of electoral expenditure claimed and accepted by the ECQ. Independents who get at least 4% of the formal first preference vote can also claim reimbursement of campaign costs up to the level of entitlement.

The Bill seeks to insert the election funding provisions as a new Part 9A, Division 4 of the Act with a number of amendments thereto. The main features of the proposed provisions (new ss 177D-177DP) are discussed below.

A registered political party will (as is currently the case) be entitled to election funding for all elections held on the same day if, in relation to an endorsed candidate, the total number of formal first preference votes given for the candidate is at least 4% of the total number of formal first preference votes made in the election. Similarly, a candidate is entitled to funding if the total number of formal first preference votes given for the candidate is at least 4% of the total number of formal first preference votes made in the election.

The model for public funding is set out in the following table (substantially reproduced from the White Paper (p 6)). The table shows the funding amount a registered political party or candidate meeting the eligibility threshold is entitled to. It also shows the actual amounts that the White Paper (p 13) estimates that a party or candidate will (during the first financial year after the expenditure cap commences) be entitled to claim. Thus, reimbursement is based on actual expenditure to ensure that amounts of funding received in excess of expenses are not pocketed by candidates by way of ‘profit’.29

Public Funding – Registered Political Parties

(Donations Cap is $5,000)

If the party incurs electoral expenditure of (assuming an expenditure cap of $80,000 per seat):

Public Funding – Candidates

(Donations Cap is $2,000)

If the candidate incurs electoral expenditure of (assuming an endorsed candidate has an expenditure cap of $50,000 and an independent candidate with an expenditure cap of $75,000):

0%-10% of the applicable expenditure cap, then entitled to 100% of the expenditure

0%-10% of the cap, then entitled to 100% of the expenditure

10%-90% of the cap, then entitled to 100% of the first 10% of the expenditure and 75% of the remaining expenditure

10%-90% of the cap, then entitled to 100% of the first 10% of the expenditure and 50% of the remainder

>90% of the cap, then entitled to 100% of the first 10% of the expenditure, and 75% of the expenditure within 10%-90%, and 50% of the next 10% of the expenditure

>90% of the cap, then entitled to 100% of the first 10% of the expenditure, and 50% of the expenditure within 10%-90%, and 25% of the next 10% of the expenditure

A party can spend a maximum of $7.12m and would be entitled to claim up to $5.340m.

An endorsed candidate can spend a maximum of $50,000 and is entitled to claim up to $21,250. An independent candidate able to spend a maximum of $75,000 would be able to claim a maximum of $31,857.

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It is proposed that if they were entitled to funding at the previous election, registered political parties and candidates will be able to claim an advance payment of public funding of up to 50% of the amount of funding they were paid for the previous election. A formula is provided for working out the amount for the first general election after commencement of the new provision. If the advance is more than what a party or candidate is entitled to, the excess must be repaid to the ECQ.

Claims for election funding must be made in an approved form and lodged within 20 weeks after polling day (unless a longer period is allowed by the ECQ). If a claim is refused (or the acceptance of the claim is varied), there are internal review rights. There appears to be no external appeal rights from the ECQ but, as the Explanatory Notes (p 3), indicate, there is a right to seek judicial review of the decision under the Judicial Review Act 1991 (Qld).

A proposed new s 177MA will make it an offence for an agent of a political party or candidate or other person (with a range of maximum penalties applicable) to lodge a claim for funding that is knowingly false or misleading in a material particular. As well as imposing a penalty, the court can also order the person to refund the State the amount of any wrongful payment obtained.

Administrative Expenditure Funding

Under the proposed Part 9A, Division 5, registered political parties and independent members will also be entitled to claim a regular amount of funding for administrative and operating expenses. The intention is to further reduce reliance on donations (White Paper, p 13). Examples of such expenditure include (for an independent member) administration or management of the member’s activities; policy conferences, seminars, meetings etc.; provision of public information or information to supporters; remuneration of staff; auditing of accounts (see new s 177E for other examples). It will not include electoral expenditure or that for which the member can claim a parliamentary allowance as a member.

Registered political parties are eligible for administrative funding for each 6 months and the amount is calculated in accordance with a formula set out in the new s 177EB. The amount to which a party is entitled every 6 months will be the lesser of:

the electoral district amount for each elected endorsed member who received at least 4% of the formal first preference votes at the last election ($40,000 for each for the initial 6 month period ending 30 June 2011); or

the State-wide amount ($1 million for the initial 6 month period ending 30 June 2011).

Independent members are entitled to administrative funding every 6 months for the amount of administrative expenditure incurred up to $20,000 (for the initial funding period) during that period. A formula is set out for subsequent periods. A claim must be made within 3 months after the end of the relevant funding period. The proposed new provisions set out the application and decision making process and the right of the independent member to request reconsideration of a refusal of a claim (see new ss 177EC-177EJ).

ENFORCEMENT PROVISIONS Provisions dealing with enforcement and powers of authorised officers currently found in Divisions 7-11 of the Schedule to the Act are proposed to be updated and relocated to the body of the Act to form new Part 9A, Divisions 14-19.

As is currently the case, the intention is to ensure that the ECQ has suitably qualified persons available to it who can assist it to properly deal with compliance issues. Authorised officers are ECQ officers, public service employees and other prescribed persons with the necessary expertise or experience or approved training. The remainder of Part 9A, Division 14 sets out various standard matters regarding appointment (e.g. conditions on powers, identity cards etc.).

The new proposed powers under Part 9A, Divisions 15-18 are similar to the existing investigative powers, with some modifications. They will allow entry to public places and to other places with consent of the occupier (which is to be informed consent) or under a warrant issued by a magistrate for the purpose of gathering evidence of an offence (which will include safeguards concerning entry procedure). General powers of authorised officers upon entering places include undertaking searches, inspections, copying documents and other investigative actions. Authorised officers can request reasonable help from an occupier or persons at the place (e.g. to copy a document or provide information) and it is an offence not to comply unless doing so might tend to incriminate the individual or expose him or her to a penalty. Powers of seizure of things that are reasonably believed to be evidence of an offence apply (subject to safeguards such as giving a receipt and information notice (opening up rights of appeal)30

to the owner; allowing access to the thing until it is forfeited or returned). Things can be forfeited to the State if the owner cannot be found or if the thing cannot be returned (safeguards include making efforts to find the owner or return the thing and giving an information notice to the

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former owner to provide rights of appeal). If damage is caused through the exercise of a power, compensation can be sought by a person.

Authorised persons will also have other standard information gathering powers such as requiring a person committing an offence to provide a name and address or a person to provide information or documents.

OFFENCE AND OTHER PROVISIONS REGARDING RETURNS A new Part 9A, Division 13 proposes to insert offences relating to returns required to be lodged with the ECQ in relation to donations and gifts, electoral expenditure, and returns by registered political parties and associated entities. There are a number of offence provisions, with varying maximum penalties attached, covering matters including failing to lodge a return; failing to keep records for the required time (3 years); lodging incomplete returns; and lodging knowingly false or misleading returns.31

Audit requirements apply in relation to most returns required under the Act and auditors are required (or an offence is committed) to notify the ECQ within 7 days of becoming aware of a matter that is reasonably likely to amount to a contravention of Part 9A by a registered political party, candidate or registered third party.

OTHER AUSTRALIAN JURISDICTIONS

Apart from New South Wales, other Australian jurisdictions do not impose limits or caps on political donations or on electoral expenditure. Most do, however, have legislation imposing disclosure obligations, often based on the requirements contained in the Commonwealth Electoral Act 1918 and penalties apply for non-compliance. South Australia, Tasmania and Victoria do not currently have disclosure laws for State election purposes but, in some situations (for federally registered political parties and candidates), the Commonwealth laws can apply. In most jurisdictions with disclosure laws, anonymous donations above certain threshold amounts are prohibited. This section of the e-Brief is an overview of the main features only of laws regarding disclosure of, and restrictions on, donations and expenditure. Details of exceptions, inclusions, offences etc. regarding disclosure and expenditure can be found on the Electoral Commission website or in the relevant legislation of each jurisdiction.

NEW SOUTH WALES Many aspects of the NSW reforms to electoral finance laws have been adopted in the Queensland Bill.32 Much of the following information is derived and summarised from the Election Funding Authority (EFA) Political Donations and Electoral Expenditure website and the EFA Summary of Changes Factsheet.

In late October 2010, the former NSW Labor Government introduced legislation to amend the now renamed Election Funding, Expenditure and Disclosures Act 1981 (NSW) (Act) to impose caps on political donations and electoral communication expenditure for NSW State elections and to provide for a change in election funding. The changes took effect on 1 January 2011 and applied to the March 2011 NSW State Election. As well as having annual reporting obligations there is a cap, applying on a financial year basis, on donations to registered political parties and groups of candidates for the Legislative Council (LC) of $5,000, and on donations to unregistered political parties, candidates and third party campaigners33 of $2,000.

Some political donations are unlawful (e.g. anonymous donations; certain indirect campaign contributions/gifts in kind of $1,000 or more from one donor in a financial year) as are donations from ‘prohibited donors’ (property developers (since legislative amendments in 2009), tobacco industry business entities and liquor or gambling industry business entities engaged in activities primarily for profit).

Electoral expenditure must all be recorded and disclosed and electoral communications expenditure (which is expenditure incurred in an election period and includes things such as advertising, campaign staff payments, production/distribution of election material) is subject to a cap for the capped expenditure period (i.e. 1 January 2011-26 March 2011) as follows:

for a registered political party endorsing candidates for:

just the Legislative Assembly (LA) – $100,000 X the number of electoral districts contested – $1,050,000;

just the LC; or the LC and less than 10 for the LA – $1,050,000;

for a group of unendorsed LC candidates – $1,050,000;

for an endorsed LA candidate – $100,000;

for an independent candidate for the LA; or an ungrouped candidate for the LC – $150,000;

for a third party campaigner – $1,050,000, if registered before the capped expenditure period, otherwise it is $535,000.

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For other applicable expenditure caps (additional caps) and caps for by-elections, see the Summary of Changes Factsheet.

The EFA approves the making of payments of public funding for State election campaigns, administration and policy development. Candidates and registered political parties may be eligible for campaign funding and each payment is a reimbursement for payment in a State election of the amount of the actual electoral communication expenditure incurred, on a sliding scale up to the applicable cap for the candidate or party. LA candidates and unendorsed/ungrouped LC candidates are eligible if elected or when they receive at least 4% of first preference vote for an election. Registered parties are eligible if any endorsed candidates are elected or receive an aggregate of at least 4% of first preference vote. Parties with elected members and independent members are eligible for annual payments from the Administration Fund for operating/administrative expenses and other parties not eligible for administration funding may be eligible for policy development funding.

NORTHERN TERRITORY The NT Electoral Commission notes34 (see also, Candidate Handbook (p 16)), that Part 10 of the Electoral Act 2004 provides for disclosure by donors, political parties, candidates and specified other persons of political donations after each election (of $1,500 or more to a political party; $200 or more to candidates), and for disclosure of electoral expenditure of $200 or more. Certain anonymous donations are prohibited. There are also other reporting obligations (with penalties for non-compliance) on registered political parties, candidates, associated entities, publishers and broadcasters. There appears to be no entitlement to public funding for campaign expenditure.

WESTERN AUSTRALIA The WA Electoral Commission’s Financial Disclosure Website notes that the Electoral Act 1907 (WA) (Part 6) requires all political parties, associated entities, candidates, groups and certain other persons to submit a return to the Commissioner disclosing details of gifts received and expenditure incurred during the relevant disclosure period (which vary according to the type of recipient). Anonymous gifts over a specified amount are prohibited. The Act also allows all candidates to apply for reimbursement for electoral expenditure incurred (to which they are eligible if they have received more than 4% of first preference votes) and it is indexed annually in accordance with CPI. For party endorsed candidates, payments can be made if they have collectively polled over 4% of total number of eligible votes at the combined elections in each contested electorate (candidates in a Legislative Council group are entitled to payment if the group as a whole polls over 4%). If the actual expenditure incurred by a candidate or group is less than the amount of entitlement, just this amount is reimbursed. See also, Funding and Disclosure Guidelines, October 2009.

AUSTRALIAN CAPITAL TERRITORY Public funding is available to registered political parties and independent candidates meeting the eligibility criteria (for a party, 4% of the total number of formal first preference votes cast in an electorate; for independent candidates, 4% of the total number of formal first preference votes cast in his or her electorate). A vote for an endorsed candidate is taken to be cast for the party, not the candidate, so payment is made to the party in accordance with the formula under s 207 of the Electoral Act 1992 (ACT) and payment is made directly without need for a claim to be lodged. Disclosure obligations apply (annual returns, election returns) for registered political parties (including candidates), donors, third parties, associated entities and others. For instance, in election returns for the 2012 election, candidates must disclose all gifts and individual details of donors of all amounts received over $1,000 or more during the specified period. Donors donating $1,000 or more during this period must detail donations as must donors who receive donations of $1,000 or more and use all or part to donate $1,000 or more on campaign expenditure. All campaign expenditure must also be disclosed by parties and candidates while donors, broadcasters/publishers and political participants must disclose expenditure of $1,000 or more. See: Funding and Disclosure Handbook 2010-2011.

VICTORIA The Victorian Electoral Commission’s State Elections Website notes that there is no provision in the Victorian Electoral Act 2002 for disclosure of the financial affairs of political parties, candidates and independent candidates in State elections but there is provision for public funding for registered political parties (which receive funding for their endorsed candidates) and independent candidates (who receive the funding themselves). Entitlement to funding by a candidate is based on the candidate receiving at least 4% of the first preference votes at the previous election. Eligible candidates receive a dollar amount per first preference vote, indexed against the CPI every 6 months. Parties and candidates are required to provide the Commission with an audited statement that their electoral expenditure was no less than their funding entitlement (if they have spent less than the entitlement, they receive only the amount expended).

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TASMANIA The Electoral Act 2004 (Tas) does not appear to have requirements for disclosure of donations, gifts or electoral campaign expenditure or provisions about funding of political parties or candidates for State elections. An article in the Mercury on 6 February 2011 noted that ‘unlike other states and federally, election campaigns are entirely reliant on corporate, political party and union donations’. The article reported that donations of up to $30,000 to Tasmanian branches of the Labor and Liberal Parties had been made by a gaming company with many poker machines in the State. It went on to quote Tasmanian Independent, Andrew Wilkie MP, who is a strong proponent for changes to poker machine laws, as saying that ‘there is no doubt that donation to political parties is one reason for the state political reluctance to implement poker machine reform around the country’.

SOUTH AUSTRALIA The Electoral Commission SA website states that the Electoral Act 1985 (SA) has no disclosure requirements or provision for funding for State elections.

COMMONWEALTH Under Part XX of the Commonwealth Electoral Act 1918, registered political parties and state branches thereof, candidates, Senate groups, associated entitles, donors and third parties have annual reporting obligations (showing the total value of receipts and payments and debts and individual donations above $11,500) and election cycle returns. For election returns, for 2010-2011, the disclosure threshold on amounts received by way of donations is for amounts of more than $11,500 (indexed against the CPI for each year). Thus, for elections, donations made to a candidate or a member of a Senate group totalling more than $11,500 during the specified period must be disclosed by donors with particulars of the source. The same requirements apply for indirect donations (those made to a person with the intention of benefiting a candidate or member of a Senate group). A donor who received a donation of more than $11,500 during the specified period and used it to donate more than $11,500 to a candidate or member of a Senate group must also disclose relevant details. Candidates, unendorsed Senate groups and Senate groups endorsed by more than one registered political party must disclose the total value of all donations received and disclose individual details of all donations received in excess of $11,500. Anonymous donations of more than $11,500 are prohibited. Electoral expenditure (e.g. advertising, opinion polls, see s 308) is also required to be disclosed by political parties, candidates, groups, third parties and certain other bodies. The donation and expenditure disclosure requirements extend to third parties which make or receive donations or incur political expenditure. See the Australian Electoral Commission’s (AEC’s) Funding and Disclosure for Political Parties website.

Registered political parties are entitled to public funding for elections where their candidates or Senate group receive at least 4% of the formal first preference votes. Independent candidates and Senate groups are entitled to funding if they receive 4% of the vote. The amount payable is worked out by the number of first preference votes received multiplied by the current rate of applicable payment, indexed every 6 months in line with the CPI (currently 234.196 cents per eligible vote for 1 January 2011 to 30 June 2011). Funding is payable automatically (without need for a claim) after the election to the political party for each endorsed candidate or to independent candidates themselves, as the case may be. It is not tied to electoral expenditure. See the AEC’s Election Funding website.

In October 2010, the Commonwealth Government introduced the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010 (Cth) (links to the Bill and the Explanatory Memorandum and to see the progress of the Bill can be found on the Bill’s homepage). Among other things, the Bill proposes to reduce the donations disclosure threshold to $1,000 and remove CPI indexing; limit the ability to split donations among various branches of one political party so as not to exceed the threshold; prohibit all foreign donations and anonymous donations above $50; require public funding to be linked to campaign expenditure; require lodgement of a claim for payments of funding; extend the range of claimable electoral expenditure; and to introduce new offences and increase various existing penalties.35 The Bill is currently before the Senate awaiting debate. See also, Bills Digest No 43, 2010-11; The Australian Collaboration – Electoral Donations and Campaign Finance.

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LINKS TO FURTHER READING

BILL & ACCOMPANYING MATERIAL

Electoral Reform and Accountability Amendment Bill 2011 (Qld); Explanatory Notes; Second Reading Speech, Queensland Parliamentary Debates, 7 April 2011, (pp 1119-1120)

ACT AMENDED

Electoral Act 1992 (Qld)

WHITE PAPER

Queensland Government, Department of Premier and Cabinet, Reforming Queensland’s Electoral System, White Paper, December 2010

MINISTERIAL MEDIA STATEMENTS

Hon Paul Lucas MP, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State, Government Cracks Down On Political Donations, 7 April 2011

Hon Anna Bligh MP, Premier and Minister for the Arts, Premier Delivers Final Plank In Nation Leading Integrity Reforms, 18 December 2010

DEPARTMENTAL WEBSITE

Electoral Commission Queensland, Financial Disclosure

Department of Premier and Cabinet, Electoral Reform website; Integrity and Accountability in Queensland, Discussion Paper, August 2009; Response to Integrity and Accountability in Queensland, November 2009

OPPOSITION BILL

On 19 May 2010, the then Leader of the Opposition, Mr JP Langbroek MP, introduced the Electoral (Truth in Advertising) Amendment Bill 2010 (Qld) into the Legislative Assembly as a Private Member’s Bill. The Bill seeks to amend the Electoral Act 1992 (Qld), the Local Government Act 1993 (Qld) and Local Government Act 2009 (Qld) to make it an offence (attracting a fine of up to $10,000) to authorise, cause or permit false or misleading electoral advertising (whatever its form of broadcast or publication) or to make a false and misleading statement during an election campaign. The Bill is currently awaiting debate. See also, Explanatory Notes; Second Reading Speech, Queensland Parliamentary Debates, 19 May 2010, pp 1634-1635.

OTHER ARTICLES

K R Mayer, University of Wisconsin-Madison, ‘Sunlight as the best disinfectant: Campaign finance in Australia’, Democratic Audit of Australia, Discussion Paper 31/06, October 2009

NEWSPAPER ARTICLES

‘Want rid of Bligh? Can do for just $5’, Sunday Mail, 3 April 2011

‘Running battle over political donations’, brisbanetimes.com.au, 19 December 2010

‘Grip tightens on election funding’, Courier Mail, 18 December 2010

‘Labor at tail end of gravy train as power shifts’, Australian, 8 December 2010

‘Ad cash sparks hypocrisy claim’, Age, 13 November 2010

16

ENDNOTES

1 Electoral Reform and Accountability Amendment Bill 2011 (Qld), Explanatory Notes, p 2. 2 The Government responded with the enactment of three pieces of legislation. The Ministerial and Other

Office Holder Staff Act 2010 (Qld) introduced new stand-alone legislation for the employment of Ministerial staff and set parameters around their powers, roles and responsibilities; the Public Interest Disclosure Act 2010 (Qld) reformed whistleblowers’ protection laws; and the Integrity Reform (Miscellaneous Amendments) Act 2010 (Qld) amended a number of Acts to, among other things, introduce a single code of conduct for the Public Service. It also amended the Parliament of Queensland Act 2001 to provide a statutory requirement for MPs to make declarations of interest for the Register of Members’ Interests and the Register of Related Persons’ Interests (previously required under standing orders only).

3 Queensland Government, Department of Premier and Cabinet (DPC), Integrity and Accountability in Queensland, Discussion Paper, August 2009; Part 1, pp 5-6.

4 Peter Van Onselen, ‘Labor at tail end of gravy train as power shifts’, Australian, 8 December 2010, p 44.

5 Peter Van Onselen, ‘Labor at tail end of gravy train as power shifts’.

6 Hon Paul Lucas MP, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State, Government Cracks Down On Political Donations, 7 April 2011.

7 Renee Viellaris, ‘Want rid of Bligh? Can do for just $5’, Sunday Mail, 3 April 2011, p 5.

8 DPC, Reforming Queensland’s Electoral System, White Paper (Electoral Reform White Paper), December 2010, p 7.

9 The public can view the disclosures on the ECQ website.

10 Defined in s 3 of the Electoral Act 1992 as either a Parliamentary party or one that has at least 500 members who are electors and which has a written constitution setting out its aims. If a political party has an associated entity (i.e. an entity controlled by one or more registered political parties or that operates for the benefit of one or more registered political parties) it must, in accordance with the new s 177AG, be treated as a political party so that a donation made to an associated entity amounts to a gift to the party.

11 Hon Paul Lucas MP, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State, Electoral Reform and Accountability Amendment Bill 2011 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 7 April 2011, pp 1119-1120, p 1119.

12 Related companies and other corporations (e.g. parent and subsidiary companies, branches of one union) are to be treated as a single donor.

13 Made in writing and provided within 14 days of the gift being given.

14 See also, DPC, Electoral Reform White Paper, p 9.

15 Pursuant to the new Part 9A, Division 2 all registered political parties and third parties that are not individuals must have an agent for the purposes of Part 9A. Candidates and individual registered third parties may appoint an agent for the election. Part 9A, Div 2 sets out the requisites for appointment as an agent, provides for a register of agents and other matters, such as who takes responsibility where there is no agent.

16 If the registered political party has more than one interstate branch or division, they are to be treated as a single person.

17

17 Under s 5 of the Penalties and Sentences Act 1992 (Qld), one penalty unit is $100. Section 181B provides that the maximum penalty for a corporation is five times that for an individual unless otherwise provided.

18 Australian Electoral Commission, Funding and Disclosure Guide 2010-2011: Donors to Political Parties, p 2.

19 Hon G Gray MP, Special Minister of State, Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010 (Cth), Second Reading Speech, House of Representatives Debates, 20 October 2010, p 8.

20 The ‘disclosure period for the election’ is explained in detail in new s 177AA.

21 Again the obligation applies where two or more political parties are related to each other and at least one is a registered political party. Similar treatment is given where the party has an associated entity.

22 Two or more gifts made during the disclosure period by the same person are taken to be one gift.

23 DPC, Electoral Reform White Paper, pp 6, 10.

24 Associated parties are registered political parties that endorse the same candidate or form a coalition and endorse different candidates for the State election (see new s 177I).

25 Hon Paul Lucas MP, Second Reading Speech, p 1120.

26 If the political parties are associated parties, the cap for each electoral district for which the parties have endorsed candidates is to be shared equally by the parties and is not a separate amount for each party when calculating the amount of expenditure.

27 DPC, Electoral Reform White Paper, p 15.

28 K R Mayer, University of Wisconsin-Madison, ‘Sunlight as the best disinfectant: Campaign finance in Australia’, Democratic Audit of Australia, Discussion Paper 31/06, October 2009, pp 4-5.

29 Hon Paul Lucas MP, Second Reading Speech, p 1120.

30 It is intended that the new Part 9A, Division 20, Sub-Div 1 will govern internal reviews of and appeals against decisions regarding seizure and forfeiture of things.

31 Other provisions in the new Part 9A, Division 13 cover where a person does not have sufficient information to prepare a fully complete return; extensions for giving a return; amendments of formal errors in claims or returns; publication of certain returns on the ECQ website; public availability of certain claims and returns.

32 DPC, Electoral Reform White Paper, p 5.

33 A third party campaigner is an entity or other person incurring electoral communication expenditure during a capped expenditure period in excess of $2,000 in total.

34 Northern Territory Electoral Commission, Disclosure Offences and Glossary of Terms. The link goes to the homepage. From there, go to ‘Candidates and Parties’ then to ‘Disclosure Offences and Glossary of Terms’.

35 Parliament of Australia, Parliamentary Library, B Holmes, N Horne & D Spooner, ‘Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010’, Bills Digest No 43, 2010-11, 17 November 2010, p 3. The Bills Digest notes (p 4) that this Bill is the third political donations reform Bill to be introduced by the Government since 2008 and follows on an agreement between the current Labor Government and Australian Greens and Independent MPs to reform donations, disclosure and funding laws.