Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

Senator Rhiannon just made one helpful point, which is that all of our four amendments are closely related and relate to political donations. I indicated to Senator Cormann at that stage that I was quite happy to deal with them together to facilitate the process. I understand that the House is waiting to deal with the results of this consideration and I do not want to take longer, given all of the accusations about filibustering—quite inaccurate, in my view—than necessarily needs to occur.

As Senator Rhiannon indicated, all parties in this chamber are fairly familiar with these issues. Let me run very quickly through the other issues. We dealt with the disclosure threshold. The next amendment is on sheet 7855 and deals with foreign donations. It will prohibit donations of a foreign party. This is part of a package of amendments in relation to political donations the opposition will bring to the chamber as part of this debate. We have a longstanding commitment to improving standards of transparency and accountability, as I have already indicated. These are important measures that need to be supported, but again, as Senator Wong highlighted, these are also matters that we do not necessarily need to wait to progress after electoral reform.

My earlier comments about how Labor in government sought to proceed here were described by Senator Rhiannon again in a fairly inaccurate way. I drew a comparison with these current measures. We have been very clear in our statements that the preferred approach is to proceed in a more consensual fashion, consistent with how committees such as JSCEM have operated historically. That has not occurred here. That was our approach when we were dealing with the political donation issues. Senator Cormann, we did not feel it was appropriate to impose on the parliament arrangements that Mr Abbott had agreed to and could progress in a more partisan fashion but, unfortunately, that arrangement fell apart.

The other area we are dealing with here is in opposition amendment (1) on sheet 7856—anonymous donations. This amendment will prohibit anonymous political donations. Again this is part of Labor's broader package of policy measures here. Again I think Senator Cameron has made points relevant to all of these measures. These are important issues if we are going to have a political donation system that has integrity and the support of the Australian community at large. These are all important issues and they do not need to wait.

I am disappointed, however, at the characterisation of me as proceeding with these in an unscrupulous way. I hope I misheard at this long hour the nature of Senator Rhiannon's contribution there, because I would not like to think that the chair did not protect me against an allegation that I was being unscrupulous. Ultimately, the Hansard will show, as indeed the Hansard will show how I was slurred earlier with the suggestion from one of her colleagues that I had said Senator Rhiannon was senile. I would never make those sorts of references. I can only suspect that that end of the chamber misheard me refer to Senator Rhiannon. I would not have said Senator Rhiannon is senile. I am pleased I have had the opportunity to clarify that point.

Going back to the issues we are trying to deal with in a fairly fast way to facilitate progress, I seek leave to move all of Labor's amendments at once.

Leave granted.

I move:

(1) Page 26 (after line 25), at the end of the Bill, add:

Schedule 2—Gifts of foreign property

Part 1—Main amendments

Commonwealth Electoral Act 1918

1 Before section 303

  Insert:

Subdivision A—Interpretation

2 After section 303

  Insert:

Subdivision B—Disclosure of gifts

303A Application of Subdivision to gifts returned within 6 weeks

     Unless the contrary intention appears, this Subdivision does not apply to a gift that is returned within 6 weeks after its receipt.

303AA Application of Subdivision to gifts of foreign property

(1) This Subdivision applies to a gift of foreign property within the meaning of Subdivision C of this Division, whether or not the gift is returned within 6 weeks after its receipt.

(2) If the gift is so returned, any return under this Subdivision that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned.

3 Section 306

  Repeal the section, substitute:

Subdivision C—Rules about gifts of foreign property

306 Definitions

(1) In this Subdivision:

  Australian property means:

  (a) money standing to the credit of an account kept in Australia; or

  (b) other money (for example, cash) that is located in Australia; or

  (c) property, other than money, that is located in Australia.

Note: For how this Subdivision applies to gifts or transfers made using a credit card, see subsection 306AB(4).

  candidacy period, in relation to a candidate, means the period:

  (a) starting on the earlier of the day on which the person announces that he or she will be a candidate in an election, or the day on which the nomination of the person as a candidate in the election is made; and

  (b) ending 30 days after the polling day in the election.

  credit card means:

  (a) any article of a kind commonly known as a credit card; or

  (b) any similar article intended for use in obtaining cash, goods or services on credit;

and includes any article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit.

  enables: a gift or other transfer enables a person or entity to do a particular thing if all or a substantial part of the gift or transfer enables the person or entity:

  (a) to do all or a substantial part of that thing; or

  (b) to be wholly or substantially reimbursed for having done that thing.

  foreign property means:

  (a) money standing to the credit of an account kept outside Australia; or

  (b) other money (for example, cash) that is located outside Australia; or

(c) property, other than money, that is located outside Australia.

Note: For how this Subdivision applies to gifts or transfers made using a credit card, see subsection 306AB(4).

  gift:

  (a) in relation to a candidate, has a meaning affected by subsection (2); and

  (b) in relation to a member of a group, has a meaning affected by subsection (3).

  group period,in relation to a group, means the period:

  (a) starting on the day on which the persons constituting the group make a request under section 168 in relation to an election; and

  (b) ending 30 days after the polling day in the election.

  political expenditure means expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

(2) A reference in this Subdivision to a gift, in relation to a candidate (or a person acting on behalf of a candidate), does not include:

  (a) a gift made for the benefit of a group of which the candidate is a member; or

  (b) a gift made in a private capacity to (or for the benefit of) the candidate if the candidate has not used, and will not use, the gift solely or substantially for a purpose related to an election.

(3) A reference in this Subdivision to a gift, in relation to a member of a group (or a person acting on behalf of a group), is a reference to a gift made for the benefit of the group.

(4) A reference in this Subdivision to a thing done by a person includes a reference to a thing done by a person on behalf of the members of an unincorporated association.

306AA Subdivision does not apply to gifts that are returned within 6 weeks

     This Subdivision does not apply to a gift that is returned within 6 weeks after its receipt.

306AB Determining whether a gift or transfer is of Australian or foreign property

Status of property as Australian or foreign to be determined by reference to position immediately before gift or transfer

(1) For the purpose of this Subdivision (but without limiting the effect of subsections (2) and (3)):

  (a) a gift or transfer of property is a gift or transfer of Australian property if the property was Australian property immediately before the gift or transfer was made; and

  (b) a gift or transfer of property is a gift or transfer of foreign property if the property was foreign property immediately before the gift or transfer was made.

Transferring foreign property to enable another person to make a gift

(2) For the purpose of this Subdivision, if:

  (a) a person (the donor) transfers foreign property (the primary transfer) to another person (the first recipient); and

  (b) the donor's main purpose in making the primary transfer is to enable (directly or indirectly) the first recipient, or another person, to make a gift to another person or entity (the ultimate recipient); and

(c) the first recipient, or another person, makes a gift (the ultimate gift) to the ultimate recipient; and

  (d) the primary transfer enabled (directly or indirectly) the first recipient, or the other person, to make the ultimate gift;

the ultimate gift is taken to be a gift of foreign property.

Changing location of foreign property etc. prior to making a gift or transfer

(3) For the purpose of this Subdivision, if:

  (a) a person:

     (i) changes the location of property so that it becomes Australian property; or

     (ii) uses foreign property to acquire Australian property; and

(b) the person's main purpose in changing the location of the property, or in acquiring the Australian property, was to enable the person to make a gift or transfer of property that would be Australian property rather than foreign property; and

  (c) the person makes a gift or transfer of Australian property in accordance with that purpose;

the gift or transfer is taken to be a gift or transfer of foreign property.

How Subdivision applies to gifts or transfers made by credit card

(4) This Subdivision applies to a gift or transfer of money made by use of a credit card as if the gift or transfer were of money standing to the credit of an account kept in the country in which the credit card is based.

306AC Gifts of foreign property: when unlawful for political party, candidate etc. to receive gift

When receiving gift is unlawful

(1) It is unlawful for a person or entity to receive a gift of foreign property in any of the following circumstances:

  (a) the gift is received by a registered political party (or by a person acting on behalf of a registered political party);

  (b) the gift is received by a State branch of a registered political party (or by a person acting on behalf of a State branch of a registered political party);

  (c) the gift is received by a candidate (or by a person acting on behalf of a candidate) during the candidacy period;

  (d) the gift is received by a member of a group (or by a person acting on behalf of a group) during the group period.

Liability for unlawful receipt of gift

(2) If a person or entity specified in column 1 of an item in the following table receives a gift that, under subsection (1), it is unlawful for the person or entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in column 2 of that item.

(3) If, under subsection (2), an amount is payable to the Commonwealth by 2 or more persons, those persons are jointly and severally liable for the payment of the amount.

(4) An amount that, under subsection (2), is payable by a person or personsto the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person or any one or more of those persons.

306AD Gifts of foreign property made to enable incurring of political expenditure: when unlawful to use or receive gift

Persons other than candidates and members of groups (current and former) and associated entities: when incurring expenditure is unlawful

(1) It is unlawful for a person (the recipient) to incur an amount of political expenditure if:

  (a) the recipient:

     (i) is not, and has not at any time been, a candidate or a member of a group; and

     (ii) is not an associated entity; and

(b) a gift of foreign property received by the recipient from another person (the donor) enabled the recipient to incur the expenditure; and

(c) the donor's main purpose in making the gift of foreign property was to enable the recipient to incur political expenditure; and

(d) the recipient is required by section 314AEB to provide a return setting out details of the expenditure (whether or not that return has been provided).

Candidates and members of groups (current and former): when incurring expenditure is unlawful

(2) It is unlawful for a person (the recipient) to incur an amount of political expenditure if:

  (a) the recipient is, or has at any time been, a candidate or a member of a group; and

  (b) a gift of foreign property received by the recipient from another person (the donor) enabled the recipient to incur the expenditure; and

  (c) the donor's main purpose in making the gift of foreign property was to enable the recipient to incur political expenditure.

Associated entities: when receiving gift is unlawful

(3) It is unlawful for an associated entity to receive a gift of foreign property from a person (the donor) if the donor's main purpose in making the gift is to enable the associated entityto incur political expenditure.

(4) In subsections (3) and (6), a reference to an associated entity receiving a gift or incurring expenditure is, if the entity is not a body corporate, a reference to a person receiving a gift or incurring expenditure on behalf of the entity.

Liability for unlawful incurring of expenditure or receipt of gift

(5) If a person incurs an amount of political expenditure that is unlawful under subsection (1) or (2), an amount equal to the amount of the expenditure is payable to the Commonwealth by the person.

(6) If an associated entity receives a gift that, under subsection (3), it is unlawful for the associated entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth in accordance with whichever of the following paragraphs applies:

  (a) if the associated entity is a body corporate, or is the trustee of a trust—the amount is payable to the Commonwealth by the associated entity;

  (b) if the associated entity is not a body corporate—the amount is payable to the Commonwealth by the financial controller of the associated entity.

(7) An amount that, under subsection (5) or (6), is payable by a person to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person.

4 After section 314AA

  Insert:

314AAA Application of Division to gifts that are returned within 6 weeks

     Unless the contrary intention appears, this Division does not apply to a gift that is returned within 6 weeks after its receipt.

303AAB Application of Division to gifts of foreign property

(1) This Division applies to a gift of foreign property within the meaning of Subdivision C of Division 4, whether or not the gift is returned within 6 weeks after its receipt.

(2) If the gift is so returned, any return under this Division that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned.

5 After subsection 315(10)

  Insert:

Unlawful receipt of gift of foreign property: situations other than when political party, State branch or associated entity is not a body corporate, or when gift is received by person on behalf of group

  (10A) A person commits an offence if:

  (a) the person (or a person acting on behalf of the person, but not a person acting on behalf of a group) receives a gift; and

  (b) the receipt of the gift is unlawful under subsection 306AC(1) or 306AD(3), and

  (c) the person is:

     (i) a registered political party that is a body corporate; or

     (ii) a State branch of a registered political party, being a State branch that is a body corporate; or

     (iii) a candidate; or

     (iv) a member of a group; or

     (v) an associated entity that is a body corporate.

Penalty:   Imprisonment for 12 months or 240penalty units, or both.

Unlawful receipt of gift of foreign property: registered political parties, State branches and associated entities that are not bodies corporate

(10B) A person commits an offence if:

(a) a gift is received by (or by a person acting on behalf of) any of the following (the recipient):

  (i) a registered political party that is not a body corporate;

  (ii) a State branch of a registered political party, being a State branch that is not a body corporate;

  (iii) an associated entity that is not a body corporate; and

(b) the receipt of the gift is unlawful under subsection 306AC(1) or 306AD(3); and

(c) the recipient is specified in column 1 of an item in the following table, and the person is specified in column 2 of that item.

Penalty:   Imprisonment for 12 months or 240penalty units, or both.

  (10C) A person does not commit an offence against subsection (10B) if:

  (a) the person does not know of the circumstances because of which the receipt of the gift is unlawful; or

  (b) the person takes all reasonable steps to avoid those circumstances occurring.

Note: A defendant bears an evidential burden of proof in relation to the matters in subsection (10C) (see subsection 13.3(3) of the Criminal Code).

Unlawful receipt of gift: person acting on behalf of group

  (10D) A person commits an offence if:

  (a) the person receives a gift; and

  (b) in receiving the gift, the person is acting on behalf of a group; and

  (c) the receipt of the gift is unlawful under subsection 306AC(1).

Penalty:   Imprisonment for 12 months or 240penalty units, or both.

Unlawful incurring of expenditure

  (10E) A person commits an offence if:

  (a) the person incurs expenditure; and

  (b) the incurring of the expenditure is unlawful under subsection 306AD(1) or (2).

Penalty:   Imprisonment for 12 months or 240penalty units, or both.

Part 2—Application provisions

6 Amendments applying to gifts received on or after the commencement of this Schedule

  The amendments made by this Schedule apply to gifts received on or after the commencement of this Schedule.

7 Amendments applying to acts or omissions occurring on or after the commencement of this Schedule

  The amendments made by item 5 of this Schedule apply in relation to acts and omissions that occur on or after the commencement of this Schedule.

(1) Page 26 (after line 25), at the end of the Bill, add:

Schedule 2—Anonymous gifts

Part 1—Main amendments

Commonwealth Electoral Act 1918

1 Subsection 287 ( 1 )

Insert:

general public activity: see subsection 306AF(3).

permitted anonymous gift: see section 306AF.

private event: see subsection 306AF(6).

2 Before section 303

Insert:

Subdivision A—Interpretation

3 After section 303

Insert:

Subdivision B—Disclosure of gifts

303A Application of Subdivision to gifts returned within 6 weeks

     Unless the contrary intention appears, this Subdivision does not apply to a gift that is returned within 6 weeks after its receipt.

4 Before section 304

Insert:

303AB Application of Subdivision to anonymous gifts

  (1) This Subdivision applies to an anonymous gift within the meaning of Subdivision D of this Division, whether or not the gift is returned, or the amount or value of the gift is paid to the Commonwealth, within 6 weeks of the receipt of the gift.

  (2) If the gift is so returned, or the amount or value of the gift is so paid to the Commonwealth, any return under this Subdivision that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned, or that the amount or value of the gift was so paid to the Commonwealth.

5 Subsection 304 ( 2 )

Omit all the words after "in an approved form,", substitute:

     setting out:

     (a) the total amount or value of all gifts received by the person during the disclosure period for the election; and

     (b) for gifts other than permitted anonymous gifts received by the person during the disclosure period for the election—the number of persons who made the gifts, and the relevant details of each gift; and

     (c) for each general public activity or private event at which permitted anonymous gifts were received by the person during the disclosure period for the election:

        (i) the date and nature of the activity or event; and

        (ii) the total amount of permitted anonymous gifts received at the activity or event; and

     (iii) for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

6 Subsection 304 ( 3 )

Omit all the words after "in an approved form,", substitute:

     setting out:

     (a) the total amount or value of all gifts received by the group during the disclosure period for the election; and

     (b) for gifts other than permitted anonymous gifts received by the group during the disclosure period for the election—the number of persons who made the gifts, and the relevant details of each gift; and

     (c) for each general public activity or private event at which permitted anonymous gifts were received by the group during the disclosure period for the election:

        (i) the date and nature of the activity or event; and

        (ii) the total amount of permitted anonymous gifts received at the activity or event; and

     (iii) for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

7 Subsection 304 ( 4 )

Omit "the purposes of this section", substitute "the purposes of paragraphs (2)(b) and (3)(b)".

8 Before section 306A

Insert:

Subdivision D—Rules about anonymous gifts

306AE Definitions

  (1) In this Subdivision:

anonymous gift: a gift is an anonymous gift if the gift is not made by a known donor.

candidacy period, in relation to a candidate, means the period:

     (a) starting on the earlier of the day on which the person announces that he or she will be a candidate in an election, or the day on which the nomination of the person as a candidate in the election is made; and

     (b) ending 30 days after the polling day in the election.

enables: a gift enables a person or entity to do a particular thing if all or a substantial part of the gift enables the person or entity:

     (a) to do all or a substantial part of that thing; or

     (b) to be wholly or substantially reimbursed for having done that thing.

gift:

     (a) in relation to a candidate, has a meaning affected by subsection (2); and

     (b) in relation to a member of a group, has a meaning affected by subsection (3).

group period,in relation to a group, means the period:

     (a) starting on the day on which the persons constituting the group make a request under section 168 in relation to an election; and

     (b) ending 30 days after the polling day in the election.

known donor: a gift is made by a known donor if:

     (a) at the time when the gift is made:

        (i) the person making the gift (the donor) gives the donor's name and address to the person receiving the gift; and

        (ii) the person receiving the gift has no grounds to believe that the name and address so given are not the donor's true name and address; or

     (b) the name and address of the donor are otherwise known to the person receiving the gift.

political expenditure means expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

  (2) A reference in this Subdivision to a gift, in relation to a candidate (or a person acting on behalf of a candidate), does not include:

     (a) a gift made for the benefit of a group of which the candidate is a member; or

     (b) a gift made in a private capacity to (or for the benefit of) the candidate if the candidate has not used, and will not use, the gift solely or substantially for a purpose related to an election.

  (3) A reference in this Subdivision to a gift, in relation to a member of a group (or a person acting on behalf of a group), is a reference to a gift made for the benefit of the group.

  (4) A reference in the definition of known donor in subsection (1) to the donor's name and address is:

     (a) in the case of a gift made on behalf of the members of an unincorporated association, other than a registered industrial organisation—a reference to:

        (i) the name of the association; and

        (ii) the names and addresses of the members of the executive committee (however described) of the association; and

     (b) in the case of a gift purportedly made out of a trust fund or out of the funds of a foundation—a reference to:

        (i) the names and addresses of the trustees of the fund or of the funds of the foundation;