The following entities are prohibited from giving donations to a political entity in the ACT:

• Property developers;
• Close associates of property developers;
• Foreign entities; and
• A person acting on behalf of a property developer, close associate of a property developer or a foreign entity.

Additionally, a political entity in the ACT is banned from accepting a donation from a prohibited donor.

However, there is an exception with the giving of such gifts where the gift has been made with the express designation that it be used for a federal election, and an exception for the acceptance of such gifts where the political entity keeps the gift in a federal election account and uses the gift only for a federal election.

For more detail on the ban on donations from prohibited donors refer to the FACTSHEET - Ban on gifts from property developers.

For the purpose of the ban on donations, a property developer is defined as:

1. a corporation that carries on a business involving the residential or commercial development of land to sell or lease for profit; but
2. does not include the following:
1. an incorporated association under the Associations Incorporation Act 1991;
2. a corporation operated on a not-for-profit basis;
3. a corporation declared by the Electoral Commission as not being a property developer;
4. any other corporation prescribed by regulation.

Examples—subpar (ii)

1. a company under the Corporations Act limited by guarantee that is prevented by its governing documents from distributing the company’s profits or assets to its shareholders
2. a corporation registered with the Australian Charities and Not for profits Commission

If a property developer, close associate of a property developer, or a person acting on behalf of a property developer or close associate gives a gift to a political entity, together with any other gift by the person in a financial year, and either:

1. at the time the gift is given, the property developer, or a close associate of the property developer, has made 1 or more relevant planning applications that have not been decided; or
2. in the 7-year period before the gift is given, the property developer, or a close associate of the property developer, has made 3 or more relevant planning applications;

then the property developer, close associate of a property developer, or the person acting on behalf of a property developer or close associate is subject to a penalty or has committed a criminal offence, depending on the value of the gift.

A close associate of a property developer is any of the following:

1. a related body corporate;
2. an officer of the corporation or a related body corporate;
3. a person whose voting power in the corporation or a related body corporate is more than 20%;
4. any domestic partner of a person mentioned in paragraph (b) or (c);
5. if the corporation or a related body corporate is a stapled entity in relation to a stapled security—the other stapled entity in relation to the stapled security;
6. if the corporation is a trustee, manager or responsible entity in relation to a trust—
   • or a unit trust—a person who holds more than 20% of the units in the trust; or
   • for a discretionary trust—a person who is a beneficiary of the trust;
7. any other person or body prescribed by regulation.

For the purpose of the ban on donations, a foreign entity is defined as any entity that is not 1 or more of the following:

1. an individual enrolled on the Commonwealth roll;
2. an individual enrolled under this Act;
3. an individual who is an Australian citizen;
4. an individual whose principal place of residence is in Australia;
5. a company incorporated under the Corporations Act;
6. a company incorporated under a territory law;
7. an entity which has its head office located in Australia;
8. an entity for which the principal place of activity is, or is in, Australia;
9. a body politic, or part of a body politic, of the Commonwealth, the Territory or a State (including the Northern Territory).

If a political entity accepts a gift made by (or on behalf of) a prohibited donor and the political entity has not taken reasonable steps to ensure that the gift is not being by (or on behalf of) a prohibited donor, then the political entity is subject to a penalty or has committed an offence depending on the amount of the gift.

Where the amount of the gifts is less than $250, reasonable steps may be:

• giving potential donors written notice that donations from property developers or close associates of property developers are prohibited
• asking the person who gives the gift about whether the person is a property developer or a close associate of a property developer

Where the amount of the gifts is $250 or more, reasonable steps may be:

• obtaining a written declaration from the person who gives the gift about whether the person is a property developer or a close associate of a property developer
• obtaining a written declaration from the person who gives the gift about whether the circumstances mentioned in (i) or (ii) above apply in relation to the gift
• asking the person who gives the gift whether the person is a property developer or a close associate of a property developer
• for a fundraising event intended to collect gifts from a large number of potential donors, providing clear written notice to potential donors that property developers, and close associates of property developers, are prohibited from giving gifts to a political entity.

If a gift is given to a political entity by a prohibited donor

If the value of the gift, together with any other gift by the person in a financial year is less than $250, then the giver of the gift must pay to the Territory an amount equal to the amount of the gift.

If the value of the gift, together with any other gift by the person in a financial year is $250 or more, then the giver of the gift has committed a criminal offence.  The maximum penalty for this offence is 50 penalty units or 6 months imprisonment, or both.

If a gift from a prohibited donor is accepted by a political party and the party has not taken reasonable steps to ensure that the donor is not banned

If the amount of the gift, together with any other gift accepted by the political entity from the person in a financial year is less than $250, then the financial representative of the political entity must pay to the Territory an amount equal to the amount of the gift.

If the amount of the gift, together with any other gift accepted by the political entity from the person in a financial year is $250 or more, then the political entity has committed a criminal offence.  The maximum penalty for this offence is 50 penalty units or 6 months imprisonment, or both. In addition, the financial representative of the political entity must pay to the Territory an amount equal to the amount of the gift.

No. A prohibited donor may make a donation to a political party provided that the political party is also registered federally and the donor expressly states that the donation is for a federal purpose only. Similarly, a prohibited donor may make a donation to an associated entity of an ACT registered political party provided that the political party associated with the associated entity also has registration federally and the donor expressly states that the donation is for a federal purpose only  .

This only quarantines the gift from territory law, and the receipt of gifts from some donors may also be prohibited at the federal level. See www.aec.gov.au for more information.

Yes.  A political party, that is registered in the ACT and is also registered at the federal level (dual registration), or an associated entity of a political party with dual registration, may accept and retain a donation from a prohibited donor if the political party or associated entity,  deposits the donation of money into a specifically designated federal bank account as soon as reasonably practicable and uses it only for federal electoral purposes, or, if the gift is not money, keeps the gift for federal electoral purposes and uses it only for federal electoral purposes.

If a political entity accepts a gift from, or on behalf of, a person; and

1. at the time the gift is given, the person is not a property developer or a close associate of a property developer; and
2. within 12 months after the gift is given:
   • the person becomes a property developer or a close associate of a property developer; and
   • a relevant planning application is made by the property developer or close associate;

then the giver of the gift must pay to the Territory an amount equal to the amount of the gift.

A person may apply to the electoral commission in relation to a corporation for a declaration that the corporation is not a property developer. To apply, a completed application form, available from Elections ACT website, must be lodged with the electoral commission.

The electoral commission may make a declaration if satisfied that it is more likely than not that the corporation is not a property developer. If the commission is not satisfied, it will not make any determination - that is, if the commission is not satisfied that the corporation is not a property developer, it is not determining that the corporation is a property developer.

Under the legislation, the electoral commission must make its decision based solely on information provided by the applicant.

A declaration is in force for 12 months.

A declaration:

1. is conclusively presumed to be correct in favour of any person for the purposes of a gift that the person makes or accepts while the declaration is in force (even if the declaration is subsequently found to be incorrect); and
2. is not presumed to be correct in favour of any person who makes or accepts a gift knowing that information given to the electoral commission, on which the declaration is based, was false or misleading in a material particular.

The receiver of a gift must ensure that they take reasonable steps even when a gift received is anonymous. This may be, for example, displaying clear written notice to all potential donors that property developers, and close associates of property developers, are prohibited from giving gifts to a political entity.