Election funding and financial disclosure changes effective 1 December 2020

Updated: 30 November 2020

The Electoral Legislation Amendment (Miscellaneous Measures) Act 2020 (Miscellaneous Measures Act) received Royal Assent on 10 November 2020 and makes a number of amendments to the Commonwealth Electoral Act 1918 (Electoral Act). The amendments relevant to election funding and disclosure include:

  • the clarification of the relationship between federal, state and territory electoral donation and disclosure laws following the High Court decision in Spence v Queensland [2019] HCA 15
  • allowing claims for election funding to be amended for the purposes of correcting any errors or omissions during the consideration period
  • the clarification of a registered political party’s entitlement to public election funding with respect to jointly endorsed Senate groups and the requirement for jointly endorsed Senate groups to lodge an agreement with the AEC on how election funding is to be apportioned
  • political campaigner and associated entity deregistration.

Relationship between federal, state and territory electoral donation and disclosure laws

Donors and gift recipients

Section 302CA of the Electoral Act has been amended by the Miscellaneous Measures Act to establish immunities from state and territory electoral laws for donors, gift recipients and the agents of gift recipients in relation to the offering, seeking, giving, receipt, retention and use of gifts expressly for federal purposes.

A federal purpose means the purpose of incurring electoral expenditure, or creating or communicating electoral matter.

An expression of purpose could be conveyed by various methods including for example by correspondence, electronic messages, information on a donation form, correspondence or a receipt that confirms the purpose.

Gifts of money

The effect of the amendment is that with regard to the receipt of gifts of money, despite any state or territory law a regulated entity, or a person on behalf of a regulated entity, may receive a gift of money as long as the gift of money is deposited in a federal account as soon as practicable after the money is received.

A regulated entity, in relation to gifts, is a political entity, political campaigner or third party.

A federal account means an account where:

  • The only amounts deposited into the account are amounts to be used only for a federal purpose; and
  • The only amounts withdrawn or transferred from the account are amounts:
    • withdrawn or transferred for a federal purpose; or
    • transferred to another federal account.

Gifts from donors which are expressly given for state or territory electoral purposes, or unconditional gifts that the recipient intends to allocate to state or territory electoral purposes, must not be placed into a federal account.

Non-monetary gifts

The effect of the amendment is that with regard to the receipt of non-monetary gifts, despite any state or territory law, a regulated entity, or a person on behalf of a regulated entity, may use or authorise the use of non-monetary gifts for federal purposes if the gift has been continuously kept for federal purposes since it was received.

Disclosure of gifts

Section 314B of the Electoral Act has also been amended by the Miscellaneous Measures Act to establish immunities from state and territory electoral disclosure laws for donors, gift recipients and the agents of gift recipients in relation to the amounts and expenditure.

A regulated entity, in relation to the disclosure of amounts given under section 314B, is a political entity, political campaigner, a third party or an associated entity.

Gifts of money

The effect of the amendment is that with regard to receipts of money, despite any state or territory law, a regulated entity is not required to disclose under that law an amount of money, or information relating to amounts of money including gifts or loans, if the regulated entity gives the amount to, or for the benefit of, a regulated entity for federal purposes.

Non-monetary gifts

The effect of the amendment is that with regard to non-monetary gifts, despite any state or territory law, a regulated entity is not required to disclose under that law the value of a non-monetary benefit, or information relating to a non-monetary benefit, if the regulated entity expressly provides the benefit to, or for the benefit of, a regulated entity for federal purposes.

Further detailed explanation can be found in the Revised Explanatory Memorandum.

Varying claims for election funding

The Miscellaneous Measures Act provides a new section 298BA of the Electoral Act which allows the agent of the candidate, Senate group, relevant registered party, or party branch (as the case requires) to vary a claim (interim or final claim). This new section allows the relevant agent to amend a claim for public election funding for the purpose of correcting an error or omission during the consideration period. The agent would not be able to amend the claim after the Electoral Commission has determined the claim. The 20 day time limit for the Electoral Commission to determine the claim would reset, for example from the time the agent amends the claim.

Entitlement to election funding with respect to jointly endorsed Senate groups

The Miscellaneous Measures Act also clarifies the entitlement to election funding for jointly endorsed Senate groups. Jointly endorsed groups means candidates in a Senate election who have been endorsed by different registered political parties and who wish to have their names grouped in the Senate ballot papers.

Where an election funding amount is payable to more than one person, payment must be split as a percentage payable to each person. Funding for a joint ticket is divisible and the total funding can only be claimed once.

The registered political parties with members in the Senate group must agree on how the election funding amount is apportioned among them and advise the AEC before the 20th day after polling day on how the entitlement is to be paid. In the absence of such an agreement, the Electoral Commissioner will decide the apportionment.

Political campaigner and associated entity deregistration

The Miscellaneous Measures Act clarifies the link between mandatory registration requirements and the ability to deregister for political campaigners and associated entities. The Electoral Commissioner will now only be required to deregister a person or entity if the Commissioner is satisfied the mandatory registration requirements are no longer triggered.

The application form for voluntary deregistration has been updated for political campaigners and associated entities to require them to provide information about why they are deregistering.

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