New AEC Funding Guidelines: Election Funding and Disclosure Laws
January 30th, 2019
The Australian Electoral Commission has released new guidelines regarding compliance with the amendments to the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018.
Some changes have been made to election funding and disclosure laws in the?Commonwealth Electoral Act 1918(Electoral Act) as a result of the?Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018?(the FAD Reform Act). Some changes came into effect on 1 December 2018, while others came into effect on 1 January 2019.
The FAD Reform Act introduces new laws that affect political parties, their associated entities and other non-party political actors.
The FAD Reform Act represents the most significant change to funding and disclosure legislation in some time. The AEC is in the process of preparing a suite of materials to assist in determining how these changes may impact you.
If you have any questions in relation to the changes please email?fad@aec.gov.au, or alternatively call the Funding and Disclosure help desk on 02?6271?4552.
Key changes:
Transparency Register
The AEC has established a Transparency Register. The Transparency Register contains information about political parties, associated entities, third parties, political campaigners, candidates and Senate groups registered with or recognised by the AEC.
You may be required to register with the AEC if you incur significant expenditure in seeking to influence voters in an election, or if you have some kind of connection with a registered political party (such as being controlled by or operating for the benefit of a registered political party).
Foreign donations
From 1 January 2019 the Electoral Act restricts the receipt of donations from foreign donors. A foreign donor can be:
- A body politic of a foreign country, or part of such a body politic;
- A body politic of a part of a foreign country, or part of such a body politic;
- A foreign public enterprise;
- An entity (whether or not incorporated) to which none of the following conditions apply:
- The entity is incorporated in Australia;
- The entity?s head office is in Australia;
- The principal place of activity of the entity is, or is in, Australia;
- An individual who is neither a Commonwealth elector, nor an Australian citizen, nor an Australian permanent resident, or a holder of Special Category Visa subclass 444.
Political parties and political campaigners must not receive donations from foreign donors for the amount or value of $1,000 or more. A foreign donor must not make gifts to a political party or political campaigner for $100 or more if the purpose is for the gift to be used for electoral expenditure or for creating or communicating electoral matter.
Third parties must not receive donations from foreign donors for the amount or value equal to the disclosure threshold ($13,800), which are then used for the purpose of incurring electoral expenditure or for creating or communicating electoral matter.
Electoral matter and electoral expenditure
From 1 December 2018 there are two definitions that are relevant to claiming electoral expenditure, disclosing electoral expenditure and determining what electoral communications need to be authorised for the purpose of Part XXA of the Electoral Act.
- Electoral expenditure?is expenditure incurred for the dominant purpose of creating or communicating electoral matter.
- Electoral matter?will be defined to be matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election.
Where expenditure is incurred to create or communicate electoral matter, in addition to other reasons, the dominant purpose of the expenditure must be considered.
In general, any expenditure incurred by a political entity, a member of the House of Representatives or a Senator in relation to an election will be electoral expenditure.
Communications that have the dominant purpose of educating their audience, raising awareness of, or encouraging debate on a public policy issue are not considered electoral matter.
The?Explanatory Memorandum?contains some helpful examples of electoral matter and electoral expenditure.
New category of entity ? Political Campaigner
From 1 December 2018 there is a requirement for the registration of a person or entity that meets the definition of a political campaigner. Registration as a political campaigner is required when:
- electoral expenditure exceeds $500,000 during that financial year or any one of the previous three financial years; or
- electoral expenditure exceeds $100,000 during that financial year, and electoral expenditure during the previous financial year was at least two-thirds of the revenue of the person or entity for that year.
Political campaigners will be required to provide?annual financial disclosure returns?with the AEC in the same way that political parties currently do.
Political campaigners will need to register with the AEC using the?approved registration form?within 90 days of being required to register. Penalties will apply for failing to register within this timeframe.
Election funding
Election funding will continue to be payable to any candidate who receives more than 4% of the total first preference votes cast in an election.
An automatic payment of election funding of $10,000 (indexed) will be paid as soon as practicable after 20?days after polling day for an election. To be paid more than $10,000 (indexed), a political party must make a claim to the AEC.? The amount of any further election funding is restricted to a reimbursement of legitimate electoral expenses incurred by the candidate or the registered political party endorsing the candidate.
Claims for election funding can be submitted to the AEC from 20 days after polling day up to six months after polling day.
The AEC is in the process of developing the mechanism for submitting claims and information will be provided by the AEC in due course. While a determination has not yet been made on the extent to which invoices or other documents will be required to be submitted to the AEC with a claim, the legislation requires political parties and candidates to retain all records associated with a claim for election funding for a period of 5 years after polling day in any case.
Penalties
Civil penalties have been added to a wider range of criminal penalties associated with election funding and disclosure. These penalties affect political parties, their associated entities and other non-party political actors.
Read the new Funding, Disclosure and Political Parties guidelines here.