Electoral Funding Act 2018 (NSW)

Electoral Funding Act 2018 No 20 An Act to make provision for the disclosure, capping and prohibition of certain political donations and electoral expenditure for parliamentary and local government election campaigns; to make provision for the public funding of parliamentary election campaigns and other activities; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Electoral Funding Act 2018. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (cf section 4A EFED Act) The objects of this Act are as follows— (a) to establish a fair and transparent electoral funding, expenditure and disclosure scheme, (b) to facilitate public awareness of political donations, (c) to help prevent corruption and undue influence in the government of the State or in local government, (d) to provide for the effective administration of public funding of elections, recognising the importance of the appropriate use of public revenue for that purpose, (e) to promote compliance by parties, elected members, candidates, groups, agents, associated entities, third-party campaigners and donors with the requirements of the electoral funding, expenditure and disclosure scheme. Part 2 Interpretation and key concepts 4 Definitions (cf sections 4 and 84 EFED Act) In this Act— Administration Fund means the fund established under Division 2 of Part 5. agent means a party agent or official agent. applicable cap on electoral expenditure—see Division 4 of Part 3. applicable cap on political donations—see Division 3 of Part 3. Assembly means the Legislative Assembly of New South Wales. Assembly general election means an election held for the return of members of the Assembly pursuant to writs issued by the Governor upon the dissolution or expiry of the Assembly. associated entity means a corporation or another entity that operates solely for the benefit of one or more registered parties or elected members. auditor includes a person appointed to conduct an audit under section 59(3) or 74(3). by-election means— (a) in relation to State elections—a by-election for the Assembly, or (b) in relation to local government elections—a by-election for a councillor (including the mayor) of the council of a local government area. candidate, in relation to an election, means a person nominated as a candidate at the election in accordance with the Electoral Act 2017 or in accordance with the Local Government Act 1993 (as the case requires) and includes a person applying for registration as, or registered as, a candidate in the Register of Candidates for the election. capped expenditure period means a capped local government expenditure period or a capped State expenditure period. capped local government expenditure period—see section 28. capped State expenditure period—see section 27. Council means the Legislative Council of New South Wales. day of nomination, in relation to an election, means the day by which all nominations in the election must be made. disposition of property means any conveyance, transfer, assignment, settlement, delivery, payment or other alienation of property, and includes— (a) the allotment of shares in a company, and (b) the creation of a trust in property, and (c) the grant or creation of any lease, mortgage, charge, servitude, licence, power, partnership or interest in property, and (d) the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of any debt, contract or chose in action, or of any interest in property, and (e) the exercise by a person of a special or general power of appointment of property in favour of any other person (or a hybrid of both), and (f) any transaction entered into by any person with intent to diminish, directly or indirectly, the value of the person's own property and to increase the value of the property of any other person. Note— Property includes money. donor means a person who or an entity that makes a gift. elected member means— (a) a member of Parliament, or (b) a councillor (including the mayor) of the council of a local government area, and includes a person who, during any period after ceasing to be a member of Parliament or a councillor, is entitled to remuneration as such a member or councillor. election means a State election or a local government election. Election Campaigns Fund means the fund established under Division 2 of Part 4. election day means the day appointed for the taking of the polls at the election. Electoral Commission means the New South Wales Electoral Commission constituted under the Electoral Act 2017. Electoral Commissioner means the person for the time being holding or acting in the office of Electoral Commissioner under the Electoral Act 2017. electoral district means a district for the election of a member to serve in the Assembly. electoral expenditure—see section 7. endorsed, in relation to a party, means endorsed, selected or otherwise accredited to stand as a representative of the party. entity means— (a) an incorporated or unincorporated body, or (b) the trustee of a trust. expenditure includes any disposition of property. financial year, subject to section 136 (Financial year of the Electoral Commission), means the period of 12 months commencing on 1 July. first preference votes means the first preference votes recorded for a candidate that are not rejected as informal at the election. function includes a power, authority or duty, and exercise a function includes perform a duty. general election means— (a) in relation to State elections—an Assembly general election and a periodic Council election held or to be held concurrently, or (b) in relation to local government elections—a local government election other than a by-election. gift means any disposition of property made by a person to another person, otherwise than by will, being a disposition made without consideration in money or money's worth or with inadequate consideration, and includes the provision of a service for no consideration or for inadequate consideration, other than— (a) the provision of voluntary labour, and (b) the provision of voluntary professional services to a party by an officer or an elected member of the party. group means— (a) in relation to State elections—a group of candidates, or part of a group of candidates, for a periodic Council election, or (b) in relation to local government elections—a group of candidates, or part of a group of candidates, for a local government election. half-year means a period of 6 months ending on 30 June or 31 December. inspector means a person appointed by the Electoral Commission under section 139. interest in property means any estate, interest, right or power whatever, whether at law or in equity, in, under or over any property. local government election means an election under the Local Government Act 1993 for the office of councillor or mayor under that Act (other than an election of mayor by councillors). major political donor means an entity or other person (not being a party, elected member, group or candidate) who makes a reportable political donation. New Parties Fund means the fund established under Division 3 of Part 5. officer, in relation to a party, means a person who is occupying or acting in an office or position concerned with the management of the party. official agent means— (a) in relation to an associated entity or a third-party campaigner for whom an official agent, appointed by the entity or campaigner under Division 6 of Part 7, is registered in the Register of Official Agents—that official agent, or (b) in any other case—a person (including the associated entity or third-party campaigner concerned) designated by the Electoral Commission. Parliament means the Parliament of New South Wales. party means a body or organisation, incorporated or unincorporated, having as one of its objects or activities the promotion of the election to Parliament or a local council of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part. party agent means— (a) a party agent appointed under Division 5 of Part 7, and (b) in relation to a group where some of the candidates in the group are members of one registered party and other candidates in the group are members of another registered party—the party agent of one of those parties as designated by those candidates. payment includes a loan, advance or deposit. periodic Council election has the same meaning as it has in section 3 of the Constitution Act 1902. political donation—see section 5. property includes money. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. registered, except in the case of a party, means registered in accordance with this Act. registered party means a party registered under the Electoral Act 2017. relevant disclosure period—see section 13. reportable political donation—see section 6. senior office holder, of a party, means a person involved in the management or control of the party or the operations of the party. State election means an Assembly general election, a periodic Council election or a by-election for the Assembly. third-party campaigner means the following— (a) for a State election—a person or another entity (not being an associated entity, party, elected member, group or candidate) who incurs electoral expenditure for a State election during a capped State expenditure period that exceeds $2,000 in total, (b) for a local government election—a person or another entity (not being an associated entity, party, elected member, group or candidate) who incurs electoral expenditure for a local government election during a capped local government expenditure period that exceeds $2,000 in total, (c) a registered third-party campaigner for an election for which it is registered. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 5 Meaning of "political donation" (cf section 85 EFED Act) (1) For the purposes of this Act, a political donation is— (a) a gift made to or for the benefit of a party or a group of candidates, or (b) a gift made to or for the benefit of an elected member, the whole or part of which was used or is intended to be used by the elected member— (i) solely or substantially for a purpose related to an election or to the elected member's duties as an elected member, or (ii) to enable the elected member to make, directly or indirectly, a political donation or to incur electoral expenditure, or (iii) to reimburse the elected member for making, directly or indirectly, a political donation or incurring electoral expenditure, or (c) a gift made to or for the benefit of a candidate, the whole or part of which was used or is intended to be used by the candidate— (i) solely or substantially for a purpose related to an election, or (ii) to enable the candidate to make, directly or indirectly, a political donation or to incur electoral expenditure, or (iii) to reimburse the candidate for making, directly or indirectly, a political donation or incurring electoral expenditure, or (d) a gift made to or for the benefit of an entity or other person (not being a party, elected member, group or candidate), the whole or part of which was used or is intended to be used by the entity or person— (i) to enable the entity or person to make, directly or indirectly, a political donation or to incur electoral expenditure, or (ii) to reimburse the entity or person for making, directly or indirectly, a political donation or incurring electoral expenditure. (2) An amount paid by a person as a contribution, entry fee or other payment to entitle that or any other person to participate in or otherwise obtain any benefit from a fundraising venture or function (being an amount that forms part of the gross proceeds of the venture or function) is taken to be a gift for the purposes of this section. (3) An annual or other subscription paid to a party by— (a) a member of the party, or (b) a person or entity (including an associated entity or industrial organisation) for affiliation with the party, is taken to be a gift to the party for the purposes of this section. Note— Unless details of any such subscription are required to be disclosed because it is a reportable political donation of or exceeding $1,000, the total amount of subscriptions and other details are required to be disclosed under section 19(4). (4) The following dispositions of property are taken to be a gift for the purposes of this section— (a) a disposition of property to a NSW branch of a party from the federal branch of the party, (b) a disposition of property to a NSW branch of a party from another State or Territory branch of the party, (c) a disposition of property from a party to another party. Note— Any such disposition will be a political donation that is required to be disclosed and subject to the caps on political donations under Part 3. Any such donation paid into (or held against the assets of) a federal election campaign account is not subject to the cap on donations—see section 24(2). (5) Uncharged interest on a loan to an entity or other person is taken to be a gift to the entity or person for the purposes of this section. Uncharged interest is the additional amount that would have been payable by the entity or person if— (a) the loan had been made on terms requiring the payment of interest at the generally prevailing interest rate for a loan of that kind, and (b) any interest payable had not been waived, and (c) any interest payments were not capitalised. (6) A payment under Part 4 (Public funding of State election campaigns) or Part 5 (Administrative and New Party policy development funding) is not a political donation. Note— Even though an electoral funding payment to a candidate is not a donation required to be disclosed, the amount is required to be paid into the separate campaign account that is established for donations to and electoral expenditure by the candidate—see section 76(3). (7) However, if any part of a gift that is not a political donation pursuant to subsection (1)(b)–(d) is subsequently used to incur electoral expenditure, that part of the gift becomes a political donation. (8) For the purposes of this Act, a political donation made to or for the benefit of a party, third-party campaigner or associated entity is a political donation for a local government election if— (a) in relation to a donation to a party—the donation is paid into (or held as an asset of) the local government campaign account of the party under Subdivision 1 of Division 5 of Part 3, and (b) in relation to a donation to a third-party campaigner or associated entity—the third-party campaigner or associated entity establishes that the donation was made solely for the purposes of a local government election campaign. 6 Meaning of "reportable political donation" (cf section 86 EFED Act) (1) For the purposes of this Act, a reportable political donation is— (a) in the case of disclosures under this Act by a party, elected member, group, candidate, associated entity or third-party campaigner—a political donation of or exceeding $1,000 made to or for the benefit of the party, elected member, group, candidate, associated entity or third-party campaigner, or (b) in the case of disclosures under this Act by a major political donor—a political donation of or exceeding $1,000 made by the major political donor to or for the benefit of a party, elected member, group, candidate, associated entity or third-party campaigner. (2) A political donation of less than an amount specified in subsection (1) made by an entity or other person is to be treated as a reportable political donation if that and other earlier, separate political donations made by that entity or other person to the same party, elected member, group, candidate, associated entity, third-party campaigner or person within the same financial year (ending 30 June) would, if aggregated, constitute a reportable political donation under subsection (1). 7 Meaning of "electoral expenditure" (cf section 87 EFED Act) (1) For the purposes of this Act, electoral expenditure is expenditure for or in connection with promoting or opposing, directly or indirectly, a party or the election of a candidate or candidates or for the purpose of influencing, directly or indirectly, the voting at an election, and which is expenditure of one of the following kinds— (a) expenditure on advertisements in radio, television, the internet, cinemas, newspapers, billboards, posters, brochures, how-to-vote cards and other election material, (b) expenditure on the production and distribution of election material, (c) expenditure on the internet, telecommunications, stationery and postage, (d) expenditure incurred in employing staff engaged in election campaigns, (e) expenditure incurred for office accommodation for any such staff and candidates (other than for the campaign headquarters of a party or for the electorate office of an elected member), (f) expenditure on travel and travel accommodation for candidates and staff engaged in electoral campaigning, (g) expenditure on research associated with election campaigns (other than in-house research), (h) expenditure incurred in raising funds for an election, (i) expenditure of a kind prescribed by the regulations. (2) Electoral expenditure does not include— (a) expenditure incurred substantially in respect of an election of members to a Parliament other than the NSW Parliament, or (b) expenditure on factual advertising of— (i) meetings to be held for the purpose of selecting persons for nomination as candidates for election, or (ii) meetings for organisational purposes of parties, branches of parties or conferences, committees or other bodies of parties or branches of parties, or (iii) any other matter involving predominantly the administration of parties or conferences, committees or other bodies of parties or branches of parties, or (c) expenditure of a kind prescribed by the regulations. (3) Electoral expenditure does not include expenditure incurred by an entity or other person (not being a party, an associated entity, an elected member, a group or a candidate) if the expenditure is not incurred for the dominant purpose of promoting or opposing a party or the election of a candidate or candidates or influencing the voting at an election. (4) For the purposes of Division 4 (Caps on electoral expenditure for election campaigns) of Part 3 (Political donations and electoral expenditure), electoral expenditure does not include expenditure incurred in raising funds for an election. (4A) For the purposes of Part 3 (Political donations and electoral expenditure), Division 4 (Caps on electoral expenditure for election campaigns), electoral expenditure does not include expenditure incurred on travel and travel accommodation for candidates and staff engaged in electoral campaigning. (4B) For the purposes of Part 3 (Political donations and electoral expenditure), Division 4 (Caps on electoral expenditure for election campaigns), electoral expenditure does not include expenditure incurred for office accommodation for a single campaign office for a candidate or a party engaged in an election campaign, including for the campaign headquarters of a party, but only to a maximum amount of $20,000 for each capped expenditure period. (4C) To avoid doubt, expenditure incurred for office accommodation that exceeds the amount referred to in subsection (4B) in a capped expenditure period is electoral expenditure for the purposes of Part 3, Division 4. (4D) The amount referred to in subsection (4B) is an adjustable amount that is to be adjusted for inflation as provided by Schedule 1. (4E) Subsection (4A) does not apply to expenditure incurred in connection with a motor vehicle, vessel or aircraft decorated with or displaying advertising or electoral material for a candidate or party. (4F) Accordingly, expenditure incurred in connection with a motor vehicle, vessel or aircraft decorated with or displaying advertising or electoral material for a candidate or party is electoral expenditure for the purposes of Part 3, Division 4. (5) For the purposes of Division 4 (Caps on electoral expenditure for election campaigns) of Part 3 (Political donations and electoral expenditure), electoral expenditure does not include expenditure of amounts of additional entitlements within the meaning of Parliamentary Remuneration Act 1989. (6) Without limiting subsection (1)(i) or (2)(c), a regulation made for the purposes of either of those paragraphs may provide that electoral expenditure of the kind prescribed is or is not electoral expenditure (as the case requires) only for the purposes of one or more specified provisions of this Act. Note— Division 4 of Part 3 caps electoral expenditure during an election campaign for State and local government elections (and Part 4 limits public funding for such expenditure at State election campaigns to part of that capped amount). Division 2 of Part 3 requires disclosure of the above electoral expenditure incurred at any time for State and local government elections. 8 References to elections and writs (cf sections 4 and 84 EFED Act) (1) For the purposes of this Act, an Assembly general election and a periodic Council election are held or are to be held concurrently if the day for the taking of the polls for each of the elections named in the writs for the elections is the same day, whether or not the taking of any such poll is adjourned. (2) For the purposes of this Act, where the writs for a general election for a State election are issued on different days, the day of the issue of the writs for the general election is taken to be the day on which the writ for the periodic Council election is issued. (3) For the purposes of this Act, where the days for the return of the writs for a general election for a State election are different, the day for the return of the writs is taken to be the day for the return of the writ for the periodic Council election. (4) A reference in this Act to the day for the return of a writ is a reference to the day specified in the writ as the day for the return of the writ. (5) A reference in this Act, in relation to a general election, to the periodic Council election is (except in so far as the context or subject matter otherwise indicates or requires) a reference to the periodic Council election that forms part of the general election. 9 Miscellaneous interpretative provisions (cf sections 4 and 84 EFED Act) (1) Parts of parties (such as branches, groups, subdivisions, controlled entities) For the purposes of this Act, where anything is done by, on behalf of or for the benefit of, or any property is held by, or in trust for, or for the members of, a body or organisation, incorporated or unincorporated, being a body or organisation that— (a) forms part of a party, or (b) is established by or under the constitution of a party, or (c) has functions conferred by or under the constitution of a party, or (d) is controlled (within the meaning of section 50AA of the Corporations Act 2001 of the Commonwealth) by a party, the thing is taken to be done by, on behalf of or for the benefit of that party or the property is taken to be held by that party, as the case may be. (2) Proposed candidates accepting gifts An individual who, or a group of individuals that, accepts a gift for use solely or substantially for a purpose related to the proposed candidacy of the individual or individuals at a future election is taken to be a candidate or group when accepting the gift. Note— Section 38(3) makes it unlawful for any such political donations to be accepted unless the individual or group is registered as a candidate or group under this Act. (3) Proposed candidates making payments for electoral expenditure An individual who, or a group of individuals that, makes a payment for electoral expenditure for the election of the individual or individuals at a future election is taken to be a candidate or group when making the payment. The guidelines of the Electoral Commission may exclude minor payments from the operation of this subsection. Note— Section 39(4) makes it unlawful for any such electoral expenditure to be incurred unless the individual or group is registered as a candidate or group under this Act. (4) End of period of candidature For the purposes of this Act— (a) a person who is a candidate in an election, or (b) a group of candidates in an election, is taken to remain a candidate or group for 30 days after the election day for the election. Note— A disclosure is still required to be made by candidates and groups after they cease to be candidates or groups following the election if they were a candidate or group during any part of the relevant disclosure period for the disclosure—see section 12(4). (5) Subsection (4) does not apply to a candidate at a time when the candidate is an elected member. (6) Value of donations or expenditures other than money For the purposes of this Act— (a) the amount of a donation or expenditure consisting of a disposition of property other than money is taken to be the amount equal to the value of the property disposed of, and (b) the value of property disposed of or the value of a gift may, if the Electoral Commission so requires, be determined by valuers appointed or approved by the Electoral Commission in accordance with the regulations. Note— The regulations may make provision for requiring persons to obtain valuations from a valuer approved by the Electoral Commission of political donations that are not gifts of money (or enabling the Electoral Commission to obtain any such valuations)—see section 156(3)(b)). (7) Name and address when donation or loan made by unincorporated association, trust fund or foundation A reference in this Act to the name and address of a person making a donation or loan is— (a) in the case of a donation or loan made by an unincorporated association—a reference to the name of the association and the names and addresses of the members of the executive committee (however described) of the association, and (b) in the case of a donation or loan purportedly made out of a trust fund or out of the funds of a foundation—a reference to the names and addresses of the trustees of the fund or of the funds of the foundation and the title or other description of the trust fund or the name of the foundation. (8) Related corporations For the purposes of this Act, corporations that are related to each other (as determined in accordance with the Corporations Act 2001 of the Commonwealth) are taken to be a single corporation. (9) Electoral expenditure of endorsed Assembly candidate includes electoral expenditure incurred by party for, and invoiced to, candidate For the purposes of this Act, an amount of electoral expenditure by a candidate for election to the Assembly includes, if the candidate is the endorsed candidate of a registered party, any amount of electoral expenditure that is— (a) incurred by that party for the direct or indirect benefit of the candidate or for the direct or indirect benefit of the candidate and other candidates endorsed by the party at the election (whether or not as an agent for the candidate), and (b) invoiced by that party to the candidate for payment (whether or not the candidate has a legal liability to pay to the party the amount invoiced). Such an amount of electoral expenditure is taken, for the purposes of this Act, not to be an amount of electoral expenditure by that party. (10) Political donation made for benefit of a campaign before candidate selection For the purposes of this Act and despite section 38(3)(a)— (a) a political donation may be made to a party agent on behalf of a future candidate for election in an Assembly electoral district before the candidate has been identified, selected or otherwise endorsed by the party, and (b) it is unlawful for such a political donation to be used otherwise than to incur electoral expenditure for or on behalf of the candidate endorsed by the party for election in that electoral district. Note— The party agent is responsible for disclosures under Part 3 of this Act for any such political donation and electoral expenditure. 10 Notes Notes included in this Act do not form part of this Act. Note— For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of the Election Funding, Expenditure and Disclosures Act 1981 (as in force immediately before the enactment of this Act). The Election Funding, Expenditure and Disclosures Act 1981 is abbreviated in these notes as "EFED Act". Part 3 Political donations and electoral expenditure (cf Part 6 EFED Act) Division 1 Preliminary (cf Division 1, Part 6 EFED Act) 11 Application (cf section 83 EFED Act) (1) This Part applies in relation to— (a) State elections and elected members of Parliament, and (b) local government elections and elected members of councils. Note— Political donations and electoral expenditure are required to be disclosed in connection with both State and local government elections and members. Caps apply to political donations and electoral expenditure in connection with State and local government elections, but public funding of election campaigns only applies to State elections. (2) In this Part, registered party includes a party registered under the Local Government Act 1993. Division 2 Disclosure of political donations and electoral expenditure (cf Division 2, Part 6 EFED Act) 12 Disclosures required to be made (cf section 88 EFED Act) (1) Parties, elected members, candidates, groups and associated entities Disclosure is required under this Part of political donations received or made, and electoral expenditure incurred, by or on behalf of the following— (a) a party (whether or not a registered party), (b) an elected member, (c) a candidate, (d) a group, (e) an associated entity. (2) Third-party campaigners Disclosure is required under this Part of— (a) electoral expenditure incurred by a third-party campaigner in a capped State expenditure period or capped local government expenditure period, and (b) political donations received by the third-party campaigner for the purposes of incurring that expenditure. (3) Major political donors Disclosure is required under this Part of reportable political donations made by a major political donor who has, during the relevant disclosure period, made a reportable political donation of or exceeding $1,000. (4) Disclosure is required even if the entity or person has ceased to be a party, elected member, candidate, group or associated enti