New campaign finance laws in the ACT - from 29 November 2023

Updated 21 Dec 2023

Introduction

This document summarises the changes to the ACT’s electoral funding and disclosure laws brought into effect through the Electoral and Road Safety Legislation Amendment Act 2023, which commenced 29 November 2023. This document also covers changes introduced through the Electoral Amendment Act 2020 which commenced 1 July 2021.

This summary is not a substitute for the law. Individuals and organisations are encouraged to obtain a copy of the ACT Electoral Act 1992 from www.legislation.act.gov.au, and the Commonwealth Electoral Act 1918 (in particular sections 287 and 302CA), and seek their own legal advice if necessary.

Elections ACT provided an online webinar briefing on the recent legislative amendments and their application as part of the ACT's funding and financial disclosure scheme on 8 December 2023. A recording of that briefing is made available for review here:

www.youtube.com/watch?v=bK3UwuNRAL8

An earlier briefing recorded on 11 June 2021 discusses the changes that were passed in late 2020 and came into effect on 1 July 2021. A recording of that briefing is made available for review here:

The ACT’s election funding, expenditure and financial disclosure scheme is administered by the ACT Electoral Commissioner and the staff of Elections ACT.

Assistance on any aspect of the scheme may be obtained from Elections ACT.

Changes to the timing for the regular reporting of gifts

The Electoral and Road Safety Legislation Amendment Bill 2023 introduced changes to the timing of regular gift reporting. However, these amendments do not take effect until 1 July 2024.

Until 1 July 2024, if the value of the gift or gifts received from a person reaches $1,000 in the financial year, the disclosure must be made to the Electoral Commissioner within seven days of the end of the month in which the total amount received from the person reached $1,000. Any additional gift received from the same person or organisation, of any value, must be disclosed within seven days of the end of the month in which it was received.

After 1 July 2024, if thevalue of the gift or gifts received from a person reaches $1,000 in the financial year, the disclosure must be made within seven days of receiving of the gift. The due date for the disclosure is linked to the gift that took the total of gifts received from that organisation or individual to the gift disclosure threshold of $1,000 or more. Once a person or organisation reaches the $1,000 threshold in a financial year, any additional gift received from that same person or organisation, of any value, must be disclosed within seven days of its receipt.

Exempt electoral expenditure

The amendments that commenced 29 November 2023 introduced a definition for exempt expenditure.

Exempt expenditure relates to an amount of up to 12.5% of the expenditure cap where expenditure is incurred on a translation service for the production of translated electoral matter. Translated electoral matter means any matter where at least 50% of the content is in a language other than English.

For the 2024 election, the expenditure cap is $50,135 per entity. This means a total of not more than $6,266.87 may be excluded from an entity’s total electoral expenditure cap calculations if the expenditure relates to the service of translating the matter.

Clarification on how authorisation statements must appear

From 29 November 2023, there are specified form, access and language requirements relating to authorisation statements.

Essentially, an authorisation statement must be communicated in the same form that the electoral matter is communicated.

Form and access requirements mean:

  • For electoral matter communicated in print, the authorisation statement must be in text, cannot be removed or erased during normal use, and will not fade, run or rub off, reasonably prominent, legible at the distance the matter is intended to be viewed, displayed in a colour that contrasts with the background on which it appears, and is not placed over complex images or multicoloured backgrounds
  • For electoral matter that is an audiovisual recording or communication, the authorisation statement must be presented both in speech and in text
  • For electoral matter that is broadcast in audio, the authorisation statement must be presented in speech
  • For electoral matter disseminated using a webpage, the authorisation statement must be published in the footer of the webpage
  • For electoral matter disseminated on a social media account where the account name is the name of an individual, the authorisation statement must be linked in the matter or in a reasonably prominent place on the account (typically the “about” or “bio” section)
  • For all matter mentioned above, the authorisation statement must be reasonably prominent

Language requirements mean:

  • If the electoral matter is in English only, the authorisation statement must be presented in English
  • If the electoral matter is only in a language other than English, the authorisation statement must be in English and the other language used in the matter
  • If the electoral matter is in two or more languages, the authorisation statement must be in English and at least one of the other languages used in the matter

Electoral matter disseminated on social media in a private capacity

The amendments that came into effect from 29 November 2023 also provided some further clarification around the exemption from authorisation requirements in relation to  private social media accounts.

To be exempt from the requirement to authorise electoral matter, the electoral matter needs to be:

  • Disseminated in a private capacity on social media account
  • An expression of the account owner’s personal political views

And the person who owns the account:

  • Is not paid to express those views; and
  • For electoral mater that is disseminated using an account that is not in the individual’s name – the account was not created for the dominant purpose of disseminating electoral matter.

Ban on gifts from foreign entities, property developers and close associates of a property developer

From 29 November 2023, foreign entities are prohibited from giving a gift to a political entity, and political entities are banned from accepting a gift from a foreign entity.

This law is very similar to the existing prohibition on the giving and receiving of gifts from property developers and close associates of a property developer, which has been in effect from 1 July 2021.

Property developers, close associates of property developers, and foreign entities are collectively referred to as ‘prohibited donors’.

It is a criminal offence for a prohibited donor or a person acting on their behalf to give a gift of $250 or more to a political entity. The political entity also commits a criminal offence if the gift is accepted. Where a prohibited gift has a value of less than $250, the giver and receiver must pay to the Territory an amount equal to the amount of the gift.

Definitions of foreign entities, property developer, close associate of a property developer and foreign entity are provided below under ‘definitions’.

Removal of the specific definitions of fundraising contribution and fundraising event

The removal of the definitions for ‘fundraising contribution’ and ‘fundraising event’ means that fundraising contributions of up to and including $250 are now considered a gift within the definition of gift in section 198AA of the Electoral Act 1992.

From 1 July 2021, fundraising contributions made by a person or organisation, including entry fees for a fundraising event or items purchased at an auction, are considered a gift to the beneficiary of the fundraising event.  However, the amount of the gift is the amount in excess of the consideration received in return for the fundraising contribution.

To aid understanding, the existing definitions of fundraising event and fundraising contribution, with suitable changes to reflect the new provisions, are provided below under ‘definitions’.

Election accounts

ACT law does not require ACT registered political parties to maintain a separate ACT election account. However, ACT registered political parties that are also registered for federal purposes with the Australian Electoral Commission, that intend to receive donations that are either not permitted under ACT electoral laws, such as donations from property developers and their close associates (see above) or that are to be deposited for federal election purposes and quarantined from ACT disclosure laws, are required under Commonwealth law to maintain a federal election account into which such donations must be deposited.

Amendments to the Commonwealth Electoral Act 1918 (Cwlth)

Amendments to the Commonwealth Electoral Act 1918, that commenced on 1 December 2020, have had an effect of limiting the operation of the ACT’s funding and disclosure scheme, as legislated for by the ACT Legislative Assembly.  The impact of the Commonwealth laws mean that, for a gift or gifts that have been provided to an ACT registered political party that also has registration at the federal level (dual registration), and that have been deposited into a federal election account by the political party, the party is not required under Territory law to disclose the gift particulars to the ACT Electoral Commission.  Similarly, it also means that for a gift or gifts that have been deposited into a federal account by an associated entity of a political party with dual registration, the associated entity is not required under Territory law to disclose the gift particulars to the ACT Electoral Commission.

In addition, the effect of the Commonwealth Electoral Act 1918 amendments mean that the ban on donations by property developers, their closes associates or a person on their behalf (collectively known as prohibited donors), giving gifts to a political party with dual registration or an associated entity of an ACT registered political party with dual registration, or their acceptance by those same political entities, do not apply under the ACT’s Electoral Act 1992:

  • to prohibited donors, if the donor expressly gives the donation for a federal purpose; or
  • to a political party, or an associated entity of a political party, if the political party, or associated entity of a political party, respectively, deposits the gift of money, in a specifically designated federal account, or, if the gift is not money, keeps the gift for federal purposes and uses it only for federal purposes.

It is however, important that ACT political parties and associated entities continue to comply with the ACT’s disclosure scheme, where they keep or identify the gift separately in order for it to be used only for a Territory electoral purpose; it has been donated with the express designation that it be used for Territory electoral purposes; or no designation was made when the gift was donated and it has not been deposited in the federal account or kept separately for federal purposes.

It is the Electoral Commission’s view, having reviewed the various pieces of legislation, that:

  • all candidates contesting an election;
  • ACT registered political parties that do not have registration at the federal level;
  • third-party campaigners; and
  • associated entities of ACT registered political parties that are not also registered at the federal level

each still have full unimpacted disclosure obligations under the ACT Electoral Act and are required to disclose gifts in compliance with the obligations detailed within this factsheet and other related manuals, available from the Elections ACT website or the Elections ACT office.

Definitions

These definitions are provided to help you to understand the new provisions.  These definitions provide a summary only.  Readers are advised to consult the Electoral Act 1992 and/or the Election funding, expenditure and financial disclosure handbook, available from the Elections ACT website or the Elections ACT office.

Associated entity means an entity that:

  • is controlled by one or more parties or MLAs; or
  • operates, completely or to a significant extent, for the benefit of one or more parties or MLAs.

Close associate of a property developer means 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—
  7. for a unit trust—a person who holds more than 20% of the units in the trust; or
  8. for a discretionary trust—a person who is a beneficiary of the trust;
  9. any other person or body prescribed by regulation.

Financial representative means:

  • for a party grouping – the reporting agent of the party;
  • for a non-party MLA – the MLA;
  • for a non-party candidate grouping – the candidate;
  • for a non-party prospective candidate grouping – the prospective candidate;
  • for an associated entity – the entity’s financial controller; or
  • for a third-party campaigner:
  • if the third-party campaigner is an individual – the third party campaigner; or
  • in any other case – the managing director (however described) of the third party campaigner.

Fundraising contribution means a payment made by a person or organisation as a contribution, entry fee or other payment to entitle the person or another person to participate in or gain a benefit from a fundraising event, and includes an amount paid for:

  • a ticket in a raffle; and
  • an item at a fundraising auction; and
  • a meal or beverage; and
  • attending a conference, seminar or similar function.

A fundraising contribution of any amount is considered a gift.

Fundraising event means an event, however described, where any part of the funds raised are retained by a political party, an MLA, an associated entity, a candidate, or a third-party campaigner.

Gift means each of the following:

  • a disposition of property made by a person or organisation to someone else, without consideration in money or money’s worth or with inadequate consideration;
  • the provision of a service, other than volunteer labour, for no consideration or inadequate consideration;
  • the part of an annual subscription paid to a party for membership of the party that is more than $250;
  • gifts given to MLAs in their capacity as a Minister: and
  • with respect to a property developer or close associate of a property developer, gift also includes a loan, other than a loan given by a financial institution on a commercial basis.

A gift does not include:

  • a disposition of property under a will;
  • an annual subscription paid to a party for membership of the party that is $250 or less;
  • a gift that is given to an individual in a private capacity for the individual’s private use and the individual does not use the gift solely or substantially for a purpose related to an election;
  • administrative expenditure funding paid by the ACT Electoral Commission; or
  • election funding paid by an electoral commission.

Party grouping for a registered party means:

  • the party;
  • an MLA for the party; and
  • a candidate for the party; and
  • a prospective candidate for the party.

Property developer means:

  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