New South Wales: 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 entity (as the case requires) at the time the disclosure is required to be made, so long as the entity or person was a party, elected member, candidate, group or associated entity at any time during the relevant disclosure period. Note— See section 9(2) for extension of disclosure and other requirements to individuals who, and groups of individuals that, accept donations before they nominate or register as candidates or groups. 13 Relevant disclosure period (cf section 89 EFED Act) For the purposes of this Act, the relevant disclosure period is each 12-month period ending on 30 June. 14 Person responsible for making disclosures (cf section 90 EFED Act) (1) The person who is responsible for making a disclosure required under this Part is as follows— (a) in the case of a party—the party agent of that party, (b) in the case of an elected member who is a member of a registered party—the party agent of that registered party, (c) in the case of an elected member who is not a member of a registered party—the elected member, (d) in the case of a candidate who is a member of a registered party—the party agent of that registered party, (e) in the case of a candidate who is not a member of a registered party—the candidate, (f) in the case of a group where all the members of the group are members of the same registered party—the party agent of that registered party, (g) in the case of a group where one or more members of the group are members of a registered party and one or more other members of the group are members of another registered party—the party agent of the registered party of the lead candidate of the group, (h) in the case of any other group—the lead candidate of the group, (i) in the case of an associated entity—the official agent of the associated entity, (j) in the case of a third-party campaigner—the official agent of the third-party campaigner, (k) in the case of a major political donor—the major political donor. (2) Despite subsection (1), the following persons are responsible for making a disclosure required under this Part— (a) in the case of an elected member who is a councillor (including the mayor) of a local government area who is a member of a registered party—the elected member, (b) in the case of a candidate in a local government election who is a member of a registered party—the candidate, (c) in the case of a group in a local government election where all (or one or more) of the members of the group are members of a registered party—the lead candidate of the group. (3) However, despite subsection (2), a party agent is the person responsible for making a disclosure required under this Part for an elected member, candidate or the group, if— (a) the party agent consents in accordance with subsection (4) to be the person responsible for making the disclosure, or (b) the party agent decides in accordance with subsection (4A) to be the person responsible for making the disclosure. (4) A party agent of the registered party may, by notice in writing given to the Electoral Commission in an approved manner and form, with the agreement of the elected member, candidate or group concerned, consent to be the person who is responsible for making a disclosure required under this Part for the elected member, candidate or group. (4A) A party agent of a registered party may, by written notice given to the Electoral Commission in an approved way, decide to be the person who is responsible for making a disclosure required under this Part for the following— (a) an elected member who is a councillor, including the mayor, of a local government area who is a member of the registered party, (b) a candidate in a local government election who is a member of the registered party, (c) a group in a local government election where all, or 1 or more, of the members of the group are members of the registered party. (5) A party agent, elected member, candidate or group may withdraw a consent or agreement under subsection (4) (as the case requires) by a notice in writing given to the Electoral Commission in an approved manner and form. (5A) A party agent may withdraw a decision under subsection (4A) by written notice given to the Electoral Commission in an approved way. (5B) A party agent must give a copy of a written notice given under subsection (4A) or (5A) to the elected member or candidate or the members of the group concerned as soon as practicable after giving the written notice to the Electoral Commission. (5C) A written notice given under subsection (4A) or (5A) is not invalid because of a failure to comply with subsection (5B). (6) The regulations may make further provision dealing with the consequences of the giving or withdrawal of notices by persons under this section. (7) In this section, lead candidate of a group means— (a) the candidate in the group whose name is first in the order of names of candidates specified in the relevant claim made under section 86 (Grouping of periodic Council election candidates) of the Electoral Act 2017 or section 308A (Grouping of candidates) of the Local Government Act 1993, as the case requires, or (b) if a group has been registered under Division 2 of Part 7 before any such claim has been made, the candidate whose name is first in the order of names specified in the Register of Candidates in relation to the group. (8) In this section, in relation to elected members of Parliament and candidates and groups of candidates in State elections, a reference to membership of a registered party does not include a reference to membership of a party registered under section 320(2) of the Local Government Act 1993. (9) Despite section 63(2)(a) of the Electoral Act 2017, a party that becomes registered under Part 6 of that Act is, for the purposes of this section, taken to be registered on the date of its registration. 14A Person responsible for making disclosures for dis-endorsed candidates (1) This section applies to State elections. (2) A party agent of the registered party may, by written notice given in an approved way, notify the Electoral Commission the party has dis-endorsed a candidate. (3) Despite subsection 14(1)(d), on and from the receipt of the notice by the Electoral Commission, the person responsible for making a disclosure required under this Part for the candidate is the candidate and not the party agent of the registered party. (4) The party agent of the registered party must give a copy of the notice to the candidate. (5) A written notice given under subsection (2) is not invalid because of a failure to comply with subsection (4). (6) The regulations may make further provision dealing with the consequences of the giving of notices under this section. 15 When disclosures of political donations to be made (cf section 91(1) EFED Act) (1) Disclosures under this Part of political donations received or made are to be made— (a) in relation to a disclosure of a reportable political donation received or made during the pre-election period for an Assembly general election—within 21 days of the political donation being received or made (or within such shorter period as may be prescribed by the regulations), and (b) in any other case—within 6 weeks after the end of the half-year within which the political donation was received or made (or within such longer period as may be prescribed by the regulations). Note 1— See section 60 for the extension of the due date for making disclosures in particular cases and section 61 for the amendment of disclosures that have been made. Note 2— While certain small political donations are not reportable under this Part if made once in a financial year, section 6(2) provides that such a political donation is a reportable political donation if it and other earlier, separate political donations made by the donor to the same donee within the same financial year would, if aggregated, total an amount that constitutes a reportable political donation. See also section 19(2)(g) specifying that the disclosure is to include details that separately identify that reportable political donation and the earlier political donation or donations with which it is aggregated. (2) Despite subsection (1)— (a) disclosures of reportable political donations required to be made by major political donors are to be made within 6 weeks after the end of the relevant disclosure period within which the political donation was received or made (or within such longer period as may be prescribed by the regulations), and Note— A disclosure by the person or entity who received the reportable political donation may be required at an earlier time under subsection (1). (b) disclosures of reportable political donations that are political donations for a local government election are to be made within 6 weeks after the end of the half-year within which the political donation was received or made (or within such longer period as may be prescribed by the regulations). Note— See section 5(8) for the meaning of a political donation for a local government election. (3) The regulations may make provision for determining, for the purposes of this section, the date on which a political donation is taken to have been received or made. (4) For the purposes of this section, the pre-election period for an Assembly general election means the following— (a) in the case of a general election to be held following the expiry of the Assembly by the effluxion of time—the period from and including 1 October in the year before which the election is to be held to the end of the election day for the election, (b) in any other case—the period from and including the day of the issue of the writ or writs for the election to the end of the election day for the election. 16 When disclosures of electoral expenditure to be made (cf section 91(1) EFED Act) Disclosures under this Part of electoral expenditure incurred are to be made within 12 weeks after the end of each relevant disclosure period (or within such longer period as may be prescribed by the regulations). Note— Unless otherwise prescribed, disclosures are to be made on or before 22 September for the period ending on 30 June in that year. See section 60 for the extension of the due date for making disclosures in particular cases, and section 61 for the amendment of disclosures that have been made. 17 How are disclosures to be made (cf section 91(2)–(6) EFED Act) (1) Disclosures are to be made in a declaration lodged with the Electoral Commission in a manner and form— (a) determined by the regulations (if any), and (b) subject to the regulations, approved by the Electoral Commission. (2) Without limiting subsection (1), the regulations or an approval by the Electoral Commission may make provision for an electronic or internet-based system of lodgment of declarations of disclosures. (3) (Repealed) (4) A declaration lodged under this section in relation to a relevant disclosure period or a half-yearly period is to contain a statement to the effect that all disclosures required to be made in relation to the period— (a) have been made, and (b) are true and correct. (5) A declaration is required to be lodged under this section in relation to a relevant disclosure period or half-yearly period even if it does not contain any disclosures. (6) For the purposes of this Act (including this section and sections 14, 22 and 141)— (a) the declaration is taken to be the making of a disclosure required by this Part, and (b) the time required by this Part for lodging the declaration is taken to be the time prescribed by sections 15 and 16 for the making of disclosures under this Part. (7) The regulations may provide for a single declaration of disclosures by the following— (a) a person or other entity who, in a relevant disclosure period or half-yearly period or in relation to any particular political donations or electoral expenditure, qualifies as more than one of the following— (i) an associated entity, (ii) a third-party campaigner, (iii) a major political donor, (b) a party agent of a registered party in relation to— (i) the party, and (ii) elected members, candidates and groups of candidates who are members of the party, and (iii) associated entities of the party. The single declaration of disclosures referred to in paragraph (b) is to separately identify the disclosures relating to the party and to each member, candidate, group or associated entity. (8) Disclosures in a declaration lodged under this section are required to be vouched for in the manner prescribed by the regulations. 18 Disclosure of electoral expenditure—further requirements (1) A disclosure under this Part by a party or a candidate of electoral expenditure incurred during a capped State expenditure period or a capped local government expenditure period is to separately identify expenditure incurred in any category of expenditure specified in the regulations in the manner prescribed by the regulations. (2) A disclosure of electoral expenditure under this Part by a party in relation to an Assembly general election is to include, as far as possible, details of electoral expenditure incurred substantially for the purposes of the election in a particular electoral district. (3) For the purposes of subsection (2), electoral expenditure is only incurred for the purposes of the election in a particular electoral district if the expenditure is for advertising or other material that— (a) explicitly mentions the name of a candidate in the election in that electoral district or the name of the electoral district, and (b) is communicated to electors in that electoral district, and (c) is not mainly communicated to electors outside that electoral district. 19 Political donations required to be disclosed (cf section 92 EFED Act) (1) General Political donations are to be disclosed in accordance with this section. (2) Reportable political donations Disclosure of reportable political donations is to include disclosure of the following details of each such donation received or made during the relevant disclosure period— (a) the party, elected member, group or candidate to or for whose benefit the donation was made (or, if the case requires, the third-party campaigner or associated entity to whom the donation was made), (b) the date on which the donation was received or made, (c) the name of the donor, (d) the residential address of the donor (in the case of an individual) or the address of the registered or other official office of the donor (in the case of an entity), (e) the amount of the donation, (f) in the case of a donor that is an entity and not an individual—the relevant business number of the entity referred to in section 46, (g) in relation to the disclosure of a political donation that is a reportable political donation by operation of section 6(2)—details that separately identify that political donation and the earlier political donation or donations with which it is aggregated. (3) Small donations Disclosure of political donations (that are not reportable political donations) is to include disclosure of— (a) the total amount of those donations during the relevant disclosure period, and (b) the total number of persons who made those donations. This subsection does not apply to disclosures by third-party campaigners or major political donors. (4) Annual party membership or affiliation subscriptions Disclosure by a party of political donations is to include disclosure of— (a) the total amount of annual or other subscriptions paid to the party by members or affiliates of the party during the relevant disclosure period, and (b) each subscription rate, and (c) the number of members who paid the subscriptions at each of those subscription rates. Disclosure of a subscription under this subsection is not required if it is disclosed as a reportable political donation. (5) Fundraising ventures or functions Disclosure of political donations is to include, in connection with fundraising ventures or functions during the relevant disclosure period— (a) either the net or gross proceeds of each such venture or function (together with a disclosure as to whether the amount is the net or gross proceeds), and (b) details of each such venture or function (including a brief description of its nature and the date on which or period in which it was held), but not including any amount of those proceeds that is separately disclosed as a political donation. (6) Loans Disclosure of reportable political donations is to include disclosure of the following information in relation to any reportable loan under section 50— (a) the amount of the loan, (b) the name and address of the entity or other person making the loan, (c) the terms and conditions of the loan, (d) the total loan repayments made under the loan during the relevant disclosure period. (7) Discretionary disclosures Details of a political donation may be disclosed under this Part even if they are not required to be disclosed under this section. 20 Electoral expenditure required to be disclosed (cf section 93 EFED Act) (1) All electoral expenditure is required to be disclosed under this Part (whether or not it is incurred during the capped State expenditure period or capped local government expenditure period for an election). (2) Subject to subsection (3), the obligation under this Part to disclose any such expenditure of a party in relation to a relevant disclosure period can be complied with by lodging with the Electoral Commission a copy of a return furnished to the Australian Electoral Commission by the agent of the party under section 314AB of the Commonwealth Electoral Act 1918 of the Commonwealth in respect of that period. (3) Subsection (2) has effect only if the return furnished to the Australian Electoral Commission contains the information required by section 18(1) and (2). Note— Section 18(1) contains a requirement that a disclosure of electoral expenditure under this Part must separately identify, and provide details of, each individual item of expenditure. Section 18(2) contains a requirement that a disclosure of electoral expenditure under this Part, in relation to an Assembly general election, is to include, as far as possible, details of electoral expenditure incurred substantially for the purposes of the election in a particular electoral district. 21 Separate disclosures not required of same item (cf section 94 EFED Act) An item disclosed under this Part— (a) in relation to an elected member—need not also be disclosed in the member's capacity as a candidate or as a member of a group, and (b) in relation to a candidate or a group that includes the candidate—need not also be disclosed in the candidate's capacity as an elected member, and (c) in relation to a group—need not also be disclosed in relation to a member of the group, and (d) in relation to a candidate—need not also be disclosed in relation to the group of which the candidate is a member. 22 Public access to disclosures, expenditure etc (cf section 95 EFED Act) (1) The Electoral Commission is to publish on a website maintained by the Electoral Commission— (a) the disclosures of reportable political donations and electoral expenditure under this Part, and (b) any other information it considers relevant. (2) The disclosures are to be published on the website as soon as practicable after the due date for the making of the disclosures. (3) The Electoral Commission may decline to publish on the website, or may remove from the website, any disclosure of political donations that the Electoral Commission has reason to suspect is vexatious, false or misleading. (4) Copies of disclosures made in a declaration under this Part are to be kept by the Electoral Commission for at least 6 years after the period to which they relate and are to be available for public inspection during ordinary office hours. (5) The Electoral Commission may, on application made to it and the payment of a reasonable fee determined by the Electoral Commission, provide copies of or extracts from any such disclosures kept by the Electoral Commission. Division 3 Caps on political donations (cf Division 2A, Part 6 EFED Act) 23 Applicable cap on political donations (cf section 95A EFED Act) Note— The dollar amounts set out in this section are the adjusted amounts for the financial year beginning 1 July 2017 (see the Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice under the Election Funding, Expenditure and Disclosures Act 1981). These dollar amounts are to be adjusted for inflation for the financial year beginning 1 July 2018 by Schedule 1. (1) General cap The applicable cap on political donations is as follows— (a) $6,100 in the case of any such political donation to or for the benefit of a registered party or of a group, (b) $2,700 in the case of any such political donation to or for the benefit of— (i) a party that is not a registered party, or (ii) an elected member, or (iii) a candidate, or (iv) a third-party campaigner, or (v) an associated entity. In this subsection, in relation to political donations for local government elections, registered party includes a party registered under the Local Government Act 1993. Note— The applicable caps are adjusted for inflation under Schedule 1. (2) Aggregation of donations during financial year A political donation of or less than an amount specified in subsection (1) made by an entity or other person is to be treated as a donation that exceeds the applicable cap on political donations if that and other separate political donations made by that entity or other person to the same party, elected member, group, candidate, third-party campaigner or associated entity within the same financial year would, if aggregated, exceed the applicable cap on political donations referred to in subsection (1). (3) Aggregation of donations to elected members, groups or candidates of same party A political donation of or less than an amount specified in subsection (1) made by an entity or other person to an elected member, group or candidate is to be treated as a donation that exceeds the applicable cap on political donations if that and other separate political donations made by that entity or other person to elected members, groups or candidates of the same party within the same financial year would, if aggregated, exceed the applicable cap on political donations to a group referred to in subsection (1). Note— Political donations in relation to separately registered parties that are in coalition or otherwise associated are not aggregated and, accordingly, the applicable cap applies separately in relation to each such registered party. (4) Separate aggregation in relation to local government elections The provisions of subsections (2) and (3) are to be applied separately to political donations for local government elections and to other political donations. (5) Non-aggregation of contributions to candidate's own campaign For the avoidance of doubt, a candidate's contribution to finance the candidate's own election campaign is not a political donation and is not included in the applicable cap on political donations to the candidate. Note— Although there is no applicable political donations cap on a candidate's contribution to finance the candidate's own election campaign, Division 4 of this Part still operates to make it unlawful for such a candidate to incur electoral expenditure that exceeds the applicable cap on electoral expenditure set out in that Division. (6) Indexation of capped amounts Each of the amounts referred to in subsection (1) is an adjustable amount that is to be adjusted for inflation as provided by Schedule 1. (7) Meaning of candidates etc of same party For the purposes of this section, elected members, groups and candidates are of the same party if the same party endorsed the elected members, members of the group or candidates at the last election (including any subsequent by-election) or are to be endorsed by the same party at the next election. If any such person ceases to be a member of that party after being elected or endorsed as a candidate, the person ceases to be of the same party for the purposes of this section. 24 Prohibition on political donations that exceed applicable cap (cf section 95B EFED Act) (1) General prohibition It is unlawful (subject to this section) for a person to accept a political donation to a party, elected member, group, candidate, third-party campaigner or associated entity if the donation exceeds the applicable cap on political donations. (2) Exception—federal campaign donations It is not unlawful for a person to accept a political donation that exceeds the applicable cap if the donation (or that part of the donation that exceeds the applicable cap) is to be paid into (or held as an asset of) an account kept exclusively for the purposes of federal election campaigns. (3) A political donation of property (not being money) that is held as an asset of an account kept for federal election campaigns ceases to be excluded by subsection (2) from the prohibition under this section if the proceeds of the disposal of the property are paid into any other account. (4) Exception for third-party campaigner It is not unlawful for a person to accept a political donation to a third-party campaigner that exceeds the applicable cap if the donation (or that part of the donation that exceeds the applicable cap) is not to be paid into (or held as an asset of) the campaign account of the third-party campaigner under Subdivision 3 of Division 5. (5) Defence—aggregation If a political donation to a person exceeds the applicable cap because of the aggregation of political donations made to other persons, the acceptance of the donation is not unlawful if the person did not know and could not reasonably have known of the political donations made to the other persons. (6) Donors required to disclose related corporation donors It is unlawful for an individual to make a political donation on behalf of a corporation that is related to another corporation (as referred to in section 9(8)) that has made a political donation to the same party, elected member, group, candidate, third-party campaigner or associated entity in the same financial year, unless the individual complies with the requirements of the regulations relating to the disclosure to the person accepting the donation of particulars of the other corporation and its political donations. 25 Prohibition on donations to more than 3 third-party campaigners (cf section 95C EFED Act) (1) It is unlawful for a person to make or accept political donations (whether for a State or local government election) to more than 3 third-party campaigners in the same financial year. (2) This section applies only to a political donation to a third-party campaigner that is to be paid into (or held as an asset of) the campaign account of the third-party campaigner under Subdivision 3 of Division 5. (3) A political donation to a third-party campaigner in contravention of this section is not unlawful if the person making or accepting the donation did not know and could not reasonably have known of the political donations to which this section applies made to the other third-party campaigners. 26 Exemption from donation caps (cf section 95D EFED Act) (1) A party subscription paid to a party is to be disregarded for the purposes of this Division, except so much of the amount of the subscription as exceeds the relevant maximum subscription under subsection (8). (2) A party levy paid to a party by an elected member or a candidate who is a member of the party is to be disregarded for the purposes of this Division. (3) An amount paid, during a financial year in which an Assembly general election or Assembly by-election is conducted, to a party by a candidate in that election who is a member of the party is to be disregarded for the purposes of this Division, except so much of the amount as exceeds the amount of the applicable cap referred to in section 29(12)(a) (as adjusted for inflation by section 29(14) and Schedule 1). Note— The applicable cap under section 29(12)(a) (Additional cap for individual Assembly seats) for the 2019 State general election is $61,500. (4) For the avoidance of doubt, it is not unlawful for a candidate for election to the Assembly who is a member of a registered party, during a financial year in which the election is conducted, to make— (a) contributions to the party agent for payment into the State Campaign account of the party to finance the candidate's own election campaign, and (b) political donations to the party, being— (i) political donations subject to the general applicable cap in section 23, and (ii) political donations that are disregarded for the purposes of this Division by subsection (3). Note— The applicable caps on electoral expenditure under section 29 for the 2019 State general election limit electoral expenditure by a candidate endorsed by a party to $122,900. Therefore, such a candidate could self fund and make a contribution of that amount to the party agent and also make political donations to the party, during the financial year of the election, of $67,600 (being the sum of $6,100 and $61,500). (5) An amount paid, during a financial year in which a periodic Council election is conducted, to a party by a candidate in that election, who is a member of the party is to be disregarded for the purposes of this Division, except so much of the amount as exceeds $50,000. (6) An amount paid, during a financial year in which a periodic Council election is conducted, to a group by a candidate in that election, who is a member of the group but is not a member of a party is to be disregarded for the purposes of this Division, except so much of the amount as exceeds $50,000. (7) A party subscription is— (a) an annual or other subscription paid to the party by a member of the party, or (b) an annual or other subscription paid to the party by an entity or other person (including an industrial organisation) for affiliation with the party. (8) For the purposes of this section— (a) the maximum subscription in respect of membership of a party is $2,000, and (b) the maximum subscription in respect of affiliation with a party is— (i