Purpose of the Bill

The purpose of the Electoral Legislation Amendment (Electoral Reform) Bill 2024 (the Bill) is to amend the Commonwealth Electoral Act 1918 (the Electoral Act) and Referendum (Machinery Provisions) Act 1984, reforming Australia’s Commonwealth electoral processes to ‘enhance the integrity of federal elections through improved transparency and accountability.’

The Bill responds to recommendations of the Joint Standing Committee on Electoral Matters’ (JSCEM) Inquiry into the Conduct of the 2022 Federal Election and Other Matters.

Structure of the Bill

The Bill contains 11 Schedules:

Schedule 1—Key definitions

Introduces key definitions including ‘third party threshold’ (being $20,000) and ‘nominated entity’ (an Australian entity that operates wholly or to a significant extent for the benefit of a registered political party and which has been voluntarily registered as a nominated entity by that party. Exchanges made between nominated entities and registered political parties are not considered gifts: Explanatory Memorandum, pp. 32–33), amends definitions including the ‘disclosure threshold’ amount (from $16,900 to $1,000), the meaning of ‘gift’, when a person is considered a ‘candidate’, and ‘third party’.

Schedule 2—Expedited disclosure of donations

Amends disclosure requirements for gifts for a ‘federal purpose’ valued over the disclosure threshold, setting timeframes for when recipients and donors must disclose the gifts to the Australian Electoral Commission (AEC) (with the disclosure during election periods being required within 7 days or within 24 hours of receipt of the gift).

Schedule 3—Gift caps

Establishes annual gift caps for federal purposes made by donors to certain persons (including Members of the House of Representatives and Senators, as well as candidates). Additionally, Schedule 3 limits the total value of gifts for a federal purpose. Exceeding the gift caps can result in civil penalties.

Schedule 4—Expenditure caps

Establishes annual caps on electoral expenditure incurred by prescribed persons (including registered political parties, candidates, Members of the House of Representatives, and Senators). There is an overall Federal cap, as well as Division and Senate caps.

Schedule 5—Returns

Consolidates financial reporting obligations for prescribed persons, who must provide annual returns to the AEC. These returns must set out particular details, including amounts and gifts received, and amounts of electoral expenditure incurred. Information contained in annual returns will support the AEC’s monitoring and compliance framework.

Schedule 6—Commonwealth campaign accounts

Expands existing obligations requiring prescribed persons to maintain a federal account for auditing purposes. All electoral expenditure must be paid from a federal account, and gifts received credited to a federal account. With some limited exceptions, no other amounts are to be credited to a federal account.

Schedule 7—Administrative assistance funding and election funding

Amends a range of funding arrangements, including establishing a framework to provide quarterly administrative assistance funding to registered political parties and independent Members of Parliament, increasing election funding payable (from currently $3.346 to $5 per vote), and establishing advance payment of election funding to incumbent persons.

Schedule 8—Senate groups

Streamlines and simplifies reporting obligations for Senate groups.

Schedule 9—Compliance and enforcement powers

Amends the Australian Electoral Commissioner’s compliance and enforcement powers. The Bill establishes a more detailed investigations framework for authorised officers (who can currently be appointed under the Electoral Act) contained in new Division 5C of Part XX of the Electoral Act. It also amends anti-avoidance provisions, including by increasing penalties for persons engaging in avoidance schemes.

Schedule 10—Machinery amendments

Enhances the operation of electoral and referendum operations by providing for a range of protections for electors and election workers, including enhancing enfranchisement for electors with disability, making it an offence to film temporary election workers without their permission, and streamlining the counting of declaration votes.

Schedule 11—Transitional rules

Provides that the Minister may, through legislative instrument, make rules prescribing matters of a transitional nature relating to amendments or repeals made by the Bill. Schedule 11 contains a ‘Henry VIII clause’, under which rules can be made to modify the application of amendments and repeals made by the Bill, for a period that ends no later than 30 June 2027 (within certain bounds, such as the rules cannot create an offence or civil penalty, provide powers of arrest or detention, or directly amend the text of the Act).

Background

The Commonwealth Electoral Act 1918 imposes funding and disclosure requirements on political parties, candidates, third parties, and associated entities campaigning in Australian federal elections. At the time this amendment was introduced (November 2024), those requirements included the following:

• Registered political parties must disclose all gifts and loans received (from any source) above the indexed threshold of $16,900, in an annual disclosure to the AEC; they must also declare total expenditure and debts for the financial year, with no requirement for itemisation.
• Associated entities (i.e. an entity controlled by or operating wholly or to a significant extent to benefit a registered political party) must disclose all gifts and loans received (from any source) above $16,900 in an annual disclosure to the AEC; they must also declare total expenditure and debts for the financial year, with no requirement for itemisation.
• Third parties and significant third parties must disclose the total amount of electoral expenditure incurred above $16,900, and details of donations received totalling more than the disclosure threshold that were used, either wholly or partly, to incur electoral expenditure in an annual disclosure to the AEC.
• Members of the House of Representatives and Senators must disclose the total amount of all donations received, the total number of individual donors, and details of donations above $16,900, in an annual disclosure to the AEC.
• Annual donors (entities or individuals who make one or more donations totalling more than the disclosure threshold) must disclose all donations made to parties, third parties, significant third parties, and associated entities (but not to individual candidates) above $16,900, as well as details of donations received by the entity or individual at any time that were used wholly or partly to make the donations, in an annual disclosure to the AEC.
• Candidates and Senate groups must disclose the total amount of all donations received, the total number of individual donors, and details of donations above $16,900, to the AEC within 15 weeks of the relevant election or by-election; this requirement applies to all candidates and Senate groups (whether party-endorsed or independent), but many endorsed candidates currently submit a null disclosure return and instead disclose their receipts and expenditure via their party’s annual return.
• Donors to individual candidates or Senate groups must disclose all donations made to parties, third parties, significant third parties, and associated entities above $16,900, to the AEC within 15 weeks of the relevant election or by-election, as well as details of donations received by the entity or individual at any time that were used wholly or partly to make the donations disclosed in the return.

Additionally, all of the above individuals and entities must declare that they have not received gifts from foreign individuals or entities.

In 2023, the Joint Standing Committee on Electoral Matters’ (JSCEM) Inquiry into the Conduct of the 2022 Federal Election and Other Matters recommended reforms to the funding and disclosure system, based on public debate and previous reforms in various states and territories. The key recommendations comprised:

• decreasing the current disclosure threshold to $1,000
• introducing ‘real-time’ disclosure of donations, rather than the current annual or post-election disclosure deadlines
• amending the definition of ‘gift’ in the Electoral Act to ‘ensure it meets community expectations of transparency in political donations’
• caps on electoral expenditure by parties, candidates, third parties, and associated entities (capped at both House electoral division and federal levels, and with a higher cap for independent candidates)
• caps on how much donors (i.e. individuals, third parties, and associated entities) can give to each party, candidate, and associated entity in each financial year
• requirement that parties, Members and Senators, candidates, associated entities, and third parties maintain ‘Commonwealth Campaign Accounts’ to allow for easier auditing
• new public administrative funding to help offset the compliance costs of these new requirements
• increased public funding for parties and candidates, to offset expected decreases in private donations
• increased resources for the AEC to implement and administer these reforms.

Two private members’ Bills—the Electoral Legislation Amendment (Fair and Transparent Elections) Bill 2024 and Electoral Legislation Amendment (Fair and Transparent Elections) Bill 2024 (No. 2)—have subsequently proposed implementing these recommendations.

Policy position of non-government parties/independents

Positions on the Bill

The Special Minister of State, Senator Don Farrell, announced on 15 November 2024 that the Bill would be introduced on 18 November 2024. Although media reports had previously suggested that Liberal and Nationals parliamentarians would support its passage, the Minister did not confirm that support on 15 November:

I can't say at this stage we've got an agreement. But I'm hoping that by the time the legislation comes up for vote, then we can get as maximum support as we possibly can. Already some of the independents have indicated they are onside with the changes.

On 18 November 2024, Liberal and Nationals members voted against Kate Chaney MP’s (Curtin, WA) motion to refer the Bill to the Joint Standing Committee on Electoral Reform for consideration and an advisory report by 3 March 2025. The motion was unsuccessful, with present Labor, Liberal and Nationals members all voting against. The following day, Liberal James Stevens MP (Sturt, SA) told Parliament that the Opposition reserved its final position on the Bill.

Members of the Australian Greens voted in support of Ms Chaney’s motion. Adam Bandt MP (Melbourne, Vic.) expressed support for greater scrutiny of the Bill but did not set out his party’s position, ‘I've got views about this bill. It's been tabled now, but there will be other people who will have views about this bill, and they should be given a chance to be heard’. In 2023, Mr Bandt responded to speculation about similar proposals, saying, ‘there’s every chance we’re about to see the establishment political parties make a last-ditch effort to prop up their dying system at the public’s expense’.

Independent Members and Senators have expressed concerns about the Bill’s complexity and its effects on challengers to party-endorsed candidates. Zoe Daniel MP (Goldstein, Vic.) wrote on 15 November that, ‘Australia needs a new approach to politics that encourages political engagement and participation in our democracy, not a lock out strategy that signals to ordinary Australians that they're not welcome to get involved.’ Senator David Pocock (ACT) has said, ‘I am deeply concerned that the legislation being introduced on Monday is a major party stitch-up that subverts parliamentary process and seeks to lock out more community independents." Ms Chaney told parliament that, ‘the major parties are relying on the increasing disengagement of the public, the complexity of this bill, the crowded media space and rushing it through to get away with the only path they've got left to arrest the trend of declining support for the sclerotic leadership the two parties offer to the public.’

The Bill passed the House of Representatives on 20 November 2024, with present Labor members, Liberal members, and Ms Sharkie voting in support. Ms Chaney, Ms Daniel, Dr Helen Haines MP (Indi, Vic.), Dai Le (Fowler, NSW), Dr Monique Ryan MP (Kooyong, Vic.), Dr Sophie Scamps MP (Mackellar, NSW), Allegra Spender MP (Wentworth, NSW), Zali Stegall MP (Warringah, NSW), Kylea Tink (North Sydney, NSW), Andrew Wilkie (Clark, Tas), and members of the Greens voted against.

Positions on disclosure threshold

There has been longstanding support for a lower disclosure threshold among members of the crossbench. Mr Wilkie, Ms Sharkie, Ms Chaney, and Senators David Pocock (ACT), Larissa Waters (Qld.), Jacqui Lambie (Tas.) and Lidia Thorpe (Vic.) have all proposed a threshold of $1,000 during the 47th Parliament.

In Parliament on 19 November 2024, James Stevens MP (Sturt, SA) voiced concern that lower thresholds would limit donors’ privacy, highlighting an alternate proposal for a $5,000 threshold.

Positions on real-time disclosure

Mr Stevens has suggested that the Coalition supports real-time disclosure (as well as the proposed definition of ‘gift’) in principle. Ms Chaney, Mr Wilkie, and Senators Sharkie, David Pocock, Thorpe, Waters and Lambie have proposed private members’ Bills that included real-time (within 7 days) disclosure provisions.

Positions on gift (donation) caps

In 2022, Senator Waters moved a private member’s Bill proposing a cumulative cap on donations from any single donor, set at $3,000 per electoral cycle. In 2023, Andrew Wilkie (Clark, Tas.) moved a private member’s Bill including a cumulative cap of $50,000 per electoral cycle. In 2024, two private members’ Bills (moved by Senators David Pocock, Waters, Lambie and Thorpe, and Ms Chaney) proposed a cumulative cap on donations from any single donor per electoral cycle, set at 2 per cent of public funding paid to parties and candidates at the previous federal election. Ms Chaney restated her support for donation caps in the Parliament on 18 November 2024.

Mr Stevens told the House that

… the key concern for coalition members through the process of the committee's inquiry on this matter was that caps be applied fairly and equitably. The ability to set the caps of donations for the Commonwealth system that has never had this limitation is new ground and may require review.

Positions on expenditure caps

Ms Chaney has expressed opposition to expenditure caps:

I think it’s appropriate to have caps so no individual can have a disproportionate effect on our democracy. That should apply equally to donations. But we’re talking about spending, not donations. If 500 people each give me $2,000, why shouldn’t I be able to spend that? That’s very different from one individual spending $100 million.

On 18 November, Ms Chaney told Parliament that expenditure caps entrench advantage for incumbent members by excluding office resources, travel and accommodation, and electorate staff from the expenditure budget, making it more difficult for challengers to defeat incumbents. Additionally, she argued that the proposed caps do not adequately account for the electoral benefits that party-endorsed candidates receive from their parties’ national campaigns (including television advertising focusing on parties as a whole, rather than on specific candidates) which are not included in the proposed caps.

Dr Ryan has agreed:

… caps on spending benefit those MPs who are already in this parliament over the candidates who choose to run against them at elections. They allow parties to concentrate their spending on target seats. They enable them to outspend Independent candidates in those seats.

On 19 November, Ms Chaney moved amendments to remove expenditure cap provisions from the Bill, and Ms Spender moved amendments to increase the cap for independent candidates to 150% of those for endorsed candidates, from the proposed rate of 120% in the Bill. The proposed amendments were not supported by the House.

Positions on public and administrative funding

Ms Steggall has criticised the Bill’s proposal to increase public funding for candidates and parties and introduce administrative funding for incumbents: ‘asking taxpayers to pay more to fund the major parties while making it harder for new entrants to participate has the unmistakable feel of rigging the market.’ Ms Chaney described the administrative funding proposal as a ‘ridiculous bribe’ which ‘translates to about $17 million in extra taxpayer funding every year—three-quarters of which goes to major parties.’

On 19 November, Ms Chaney moved amendments to remove administrative assistance funding and election funding provisions from the Bill, and Ms Steggall moved amendments to the motion for second reading to request an assessment of realistic administrative compliance costs, and place a cap on administrative funding. The proposed amendments were not supported by the House.

Key issues and provisions

Disclosure threshold

The Bill repeals the definition of disclosure threshold (currently $16,900 for the 2024–25 financial year) in section 287 and replaces it with a $1,000 threshold (item 10 of Schedule 1), subject to indexation (proposed section 321AA—item 9 of Schedule 3). This will create certain obligations, including:

• Recipients of gifts for a federal purpose, where the value or amount of the gift is more than the disclosure threshold, will be required to give the Electoral Commission notice of the gift: proposed section 303A (item 4 of Schedule 2).
• Donors who make gifts for a federal purpose, where the value or amount of the gift is more than the disclosure threshold will be required to give the Electoral Commission notice of the gift: proposed section 303E (item 4 of Schedule 2) .

The meaning of ‘federal purpose’ is defined in existing subsection 287(1) of the Electoral Act, and means the purpose of incurring electoral expenditure, or creating or communicating electoral matter.

As a result of these reforms, a larger group of donors will be published on the AEC Transparency Register, as anyone contributing more than $1,000 will be listed (Explanatory Memorandum, p. 10).

This provision aligns the threshold above which donations must be disclosed for federal electoral purposes with donations made for New South Wales, Victoria, Queensland, the ACT, and NT electoral purposes, and slightly lower than thresholds for South Australia and Western Australia).

Real-time disclosures (‘expedited disclosures’)

Recipient obligations

Proposed section 303A (item 4 of Schedule 2) outlines obligations for recipients who receive gifts for a federal purpose over the disclosure threshold amount ($1,000, arising either through a singular gift or multiple gifts from the same donor whose total value is more than $1,000 in a calendar year: Explanatory Memorandum, p. 41), who must provide a written notice to the AEC within a certain period (see Table 1 below).

Table 1  Recipient gift reporting timeframes

Source: proposed subsection 303A(2) of the Bill (item 4 of Schedule 2).

The expedited notice period is the period beginning on the Saturday immediately preceding polling day for an election and ending seven days after polling day (definition inserted into section 303 by item 4 of Schedule 2).

The election period is the period commencing on the day of issue of the writ for the election and ending at the latest time on polling day at which an elector in Australia could enter a polling booth to cast a vote (definition inserted into section 303 by item 4 of Schedule 2).

A donation disclosure made under proposed section 303A must include: the name of the recipient, the amount or value of the gift, the date on which the gift was received and certain other relevant details, including in some instances the name and address of the donor (proposed section 303B). This continues existing requirements.

Previously, political parties, associated entities, and third parties have been required to disclose all gifts received (above the disclosure threshold) in each financial year in an annual submission to the AEC. This provision would introduce the most expedited disclosure schedule among Australian jurisdictions.

Donor obligations

Proposed section 303E outlines similar circumstances where a donor is required to provide a written notice to the AEC, and proposed section 303F prescribes what content the donation disclosure notice must contain. Donors are subject to the 7-day election period disclosure obligation, but exempt from the 24-hour (expedited notice period) obligation; donations made within the election period or the expedited notice period must be disclosed within 7 days from the time the gift is made (Explanatory Memorandum, p. 47).

Gift (donation) caps

Schedule 3 of the Bill establishes caps on ‘gifts for a federal purpose’. The definition of gift is repealed from section 287(1) by item 12 of Schedule 1 and introduced in proposed section 287AAB (inserted by item 18 of Schedule 1). Proposed subsections 287AAB(1)–(2) detail what a gift includes, and proposed subsection 287AAB(3) lists what is not considered a gift.

Schedule 3 establishes an ‘annual gift cap’, ‘overall gift cap’, and a ‘State and Territory gift cap’, limiting the total value of gift contributions for a federal purpose. All three gift caps operate together concurrently (Explanatory Memorandum, p. 59). Additionally, a $20,000 cap is also established for by-elections and Senate-only elections (item 1 of Schedule 3 and proposed subsections 302CB(2) and (3), at item 5 of Schedule 3).

Currently, there is no cap on gifts for federal electoral purposes. This provision aligns the Commonwealth with NSW, Victorian and Queensland legislation, although all three states currently have significantly lower caps ($7,900 per annum, $4,850 per four years, and $6,000 per two years, respectively) than proposed in this Bill (Explanatory Memorandum, p. 59).

Annual cap

The annual gift cap for a calendar year means $20,000 (inserted into section 302B by item 1 of Schedule 3), which is subject to indexation (item 9 of Schedule 3). It will be a contravention if a gift exceeds the annual gift cap (as defined in proposed section 302BA; item 2 of Schedule 3). This means that political donations from one donor to one person, entity or political party in one calendar year are limited to $20,000.

Proposed section 302CD (item 5 of Schedule 3) outlines that both recipients (if they receive) and donors (if they make) may be liable for civil penalties if the gift exceeds the annual gift cap. However, there are exceptions to civil liability if the recipient or donor did not know, and could not reasonably have known, that the gift exceeded the annual gift cap, and they took appropriate actions once they became aware. Gifts exceeding the annual gift cap may be a debt due to the Commonwealth (see Note 2 following proposed subsection 302CD(1) and items 7–8 in Schedule 3).

Overall gift cap

The overall gift cap is an amount 32 times the annual gift cap for each calendar year (item 1 of Schedule 3). This is intended to limit the overall value of gifts that a donor can make to registered political parties, the State branch of a registered political party, member of the House of Representatives, Senator, candidate or a nominated entity each calendar year (Assistant Minister Gorman’s Second Reading Speech).

If a donor exceeds the overall gift cap, they may be liable for civil penalties (proposed section 302CI at item 5 of Schedule 3). However, exceptions apply if the donor did not know, and could not reasonably have been expected to know, that the gift exceeded the overall gift cap, and they took appropriate actions once they became aware (proposed subsection 302CI(4)).

Expenditure caps

Schedule 4 amends the Electoral Act to establish annual caps on electoral expenditure incurred by relevant persons. The Bill introduces a tiered expenditure cap structure that limits overall expenditure as well as expenditure targeted at specific Divisions, States or Territories. There are rules for determining whether expenditure is particular to a certain area.

If an expenditure cap is exceeded, the liable person (defined in proposed subsection 302ALA at item 2 of Schedule 4) is liable to a civil penalty, being the higher of 1,000 penalty units ($330,000) or 3 times the excess amount of the expenditure. Exceptions apply if the relevant person did not, and could not reasonably have been expected to know the cap had been exceeded (proposed section 302AQA at item 2 of Schedule 4).

Federal cap (for registered parties)

The federal cap is for a registered political party and members of its expenditure group (which is defined in proposed subsection 302ALF(1)). The federal cap is set annually at $90 million (proposed section 302ALA), indexed annually under proposed section 321AB (item 5 of Schedule 4). The Federal cap ‘acts as an upper limit on major party electoral expenditure’ (Explanatory Memorandum, p. 100).

Within the Federal cap, there is an annual ‘Divisional cap’ per House of Representatives Division, and an annual ‘Senate cap’ for each State and Territory.

Divisional and Senate caps

Divisional and Senate caps apply to electoral expenditure ‘targeted’ to that particular area, being the Division, State, or Territory within the meaning of proposed section 302ALC. Expenditure counted towards both Divisional and Senate caps also counts towards the Federal cap for the relevant person or entity.

Divisional cap is defined in proposed section 302ALA to mean $800,000, indexed annually under proposed section 321AB. The Explanatory Memorandum (p. 102) explains that the Divisional cap

… provides a calibrated mechanism that is intended to ‘level the playing field’ for an election for an electoral Division, within the context of a federal election, by preventing a political party from drowning out the voices of other political participants in a particular Division through disproportionally directing expenditure at a particular Divisional contest.

Additionally, a party that contests all 150 divisions cannot spend the maximum allowed in each division without exceeding its federal cap. Electoral matter that is not explicitly targeted at a candidate or division will contribute to the federal expenditure cap, but not the division cap (Explanatory Memorandum, p. 102).

Senate cap is defined in proposed section 302ALA to mean the Senate base amount (being $200,000) multiplied by the number of Divisions in the State or Territory. This calculation is roughly proportional to the number of electors in each State or Territory. The Senate cap for each jurisdiction is included in the Explanatory Memorandum (p. 103) and Table 2 below.

Table 2  Senate cap for jurisdictions

Source: Explanatory Memorandum to the Bill (p. 103)

Based on the number of Divisions each State and Territory is entitled to as on 1 November 2024. Note that the ‘Senate base amount’ which affects the ‘Senate cap’ and ‘Senate-only election cap’ is indexed under section 321AB. Explanatory Memorandum (p. 103)

Similar to divisional caps, the Explanatory Memorandum (p. 103) states that

… electoral expenditure is only subject to the Senate cap if it expressly mentions the name, or includes an image or likeness of, a candidate for the Senate for the State or Territory, or expressly mentions a Senate election for the State or Territory, and is substantially directed at electors in that State or Territory.

Independent House of Representatives cap

The annual expenditure cap for an Independent House candidate or member is $800,000 (proposed section 302ALA), indexed annually under proposed section 321AB.

Independent Senate cap

The annual expenditure cap for an Independent Senate candidate or Senator is the Senate cap total for the relevant jurisdiction, divided by six for the States and by two for the Territories to reflect that independent candidates are only contesting one of the available vacancies (proposed section 302ALA). As with registered parties’ Senate caps, the independent Senate caps are roughly proportional to the number of electors in each State or Territory.

By-election and Senate-only election caps

Other caps include:

• Independent House of Representative by-election cap: 120% of the Independent House of Representatives cap, which upon commencement would be $960,000 (proposed sections 302ALA and 302ANB)
• Senate-only election Independent Senate cap: 120% of the Independent Senate cap (proposed sections 302ALA and 302AOB)
• Capped entity cap (applying to the financial controller of a significant third party, associated entity, or third party): $11.25 million (proposed section 302ALA), indexed annually under proposed section 321AB.

Changes to funding

Administrative assistance funding

Item 3 of Schedule 7 of the Bill introduces new Division 3AA (comprising proposed sections 302AA to 302AJ) into Part XX of the Electoral Act. This provides the framework for prescribed persons (registered political parties, independent members of the House of Representatives, and independent Senators) to receive quarterly payments of administrative assistance funding.

Administrative expenditure, for the purpose of receiving administrative assistance funding, is defined in proposed subsection 287AAA(1) (item 2 of Schedule 7), and includes ‘expenses incurred in preparing for and participating in electoral activities apart from campaigning’ (Explanatory Memorandum, p. 145). Proposed subsection 287AAA(2) indicates what is not included as administrative expenditure, which primarily refers to expenditure incurred for the purposes of electoral matters.

Per quarter, at the time of commencement (which will be indexed annually according to the Consumer Price Index):

• a registered political party is entitled to $7,500 for each member of the House of Representatives, and $3,750 for each member of the Senate (proposed subsection 302AB(2)), to be paid by the AEC (proposed section 302AE)
• an independent member of the House of Representatives is entitled to $7,500, and an independent Senator is entitled to $3,750 (proposed subsection 302AC(2)), to be paid by the AEC (proposed section 302AF).

This is new funding (additional to existing election funding arrangements) and to be used only to incur administrative expenditure. Contravention of this may lead to civil penalties (proposed section 302AG).

Election funding

Part 2 of Schedule 7 of the Bill amends the Electoral Act to increase election funding payable to relevant persons (from currently $3.346 to $5 per vote, which will be indexed annually), being:

• a group (as defined in section 287) (item 5)
• registered political parties (item 6)
• unendorsed candidates (item 7), and
• unendorsed groups (item 8)

that receive at least 4% of the total formal first preference votes in an election.

Advance payment of election funding

Part 3 of Schedule 7 introduces Subdivision CA (Advance payment of election funding), into Division 3 of Part XX of the Electoral Act. This proposed Subdivision provides that regulations can provide for an amount of election funding to be paid as an advance on funding that may be payable in respect of a future election. Proposed section 298J (item 11 of Schedule 7) outlines that advance funding can be provided to registered political parties (payments to be made under existing section 293) or candidates (payments to be made under existing section 294). The advance payment amounts are determined by reference to existing section 293 (for registered political parties), section 294 (for unendorsed candidates) and section 295 (for unendorsed groups) of the Electoral Act.

Advance payments are only available to candidates who received more than 4 per cent of first preference votes at the previous election (including incumbent Members and Senators), and are made in advance of an election, in expectation of their entitlement from the forthcoming election. The amount and timing of advance payments will be provided for in the regulations, and the Electoral Commissioner must publish his or her determinations in accordance with the Electoral Act.

Concluding comments

It has already been foreshadowed by some, including Clive Palmer, that should the Bill pass, it will be challenged on constitutional grounds in the High Court.

Constitutional law Professor Anne Twomey has suggested that aspects of the Bill are ‘vulnerable to constitutional challenge.’ Professor Twomey has drawn particular attention to potential constitutional issues regarding the overall gift cap and the favouring of incumbent Members of Parliament over new independents and parties seeking election.