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TASMANIA
__________
ELECTORAL AMENDMENT BILL 2012
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 4 amended (Electoral matter)
5. Section 28 amended (Returning officer or election official to
cease to hold office on becoming a candidate)
6. Part 5A inserted
PART 5A - Prohibition on Donations from Tobacco Industry
Business Entities
157C. Interpretation
157D. Political donations by tobacco industry business
entities unlawful
157E. Meaning of political donation
157F. Loans intended as political donations
157G. Exception for membership contributions
157H. Determination by Commission that person not a
tobacco industry business entity
157I. Recovery of unlawful donations, &c.
157J. Liability of directors, &c.
157K. Time within which proceedings must be taken
7. Part 6, Division 1: Heading amended
8. Section 158 amended (Election agent)
9. Section 159 amended (Who may incur expenditure)
10. Section 162 amended (Party not to incur election expenditure)
[Bill 12]-I
11. Section 181 amended (Offence to fail to vote)
12. Schedule 3 amended (Printing and collation of ballot papers)
13. Repeal of Act
2
ELECTORAL AMENDMENT BILL 2012
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
13 November 2012
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend the Electoral Act 2004
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Electoral
Amendment Act 2012.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Principal Act
In this Act, the Electoral Act 2004* is referred to
as the Principal Act.
*No. 51 of 2004
[Bill 12] 3
Electoral Amendment Act 2012
Act No. of
s. 4
4. Section 4 amended (Electoral matter)
Section 4(2) of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a)(v) "or
intending candidate" after "candidate";
(b) by inserting in paragraph (a)(v) "or
intending candidates" after "candidates";
(c) by inserting in paragraph (b)(i) "or
intending candidate" after "candidate";
(d) by inserting in paragraph (b)(ii) "or
intending candidate" after "a candidate";
(e) by inserting in paragraph (b)(ii) "or
intending candidate" after "such
candidate".
5. Section 28 amended (Returning officer or election
official to cease to hold office on becoming a
candidate)
Section 28 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "becomes
an intending candidate or" after
"official";
(b) by inserting in subsection (2) "who
becomes an intending candidate or" after
"A person";
4
Electoral Amendment Act 2012
Act No. of
s. 6
(c) by inserting in subsection (2) "became an
intending candidate or" after "the
person".
6. Part 5A inserted
After section 157B of the Principal Act, the
following Part is inserted:
PART 5A - PROHIBITION ON DONATIONS FROM
TOBACCO INDUSTRY BUSINESS ENTITIES
157C. Interpretation
In this Part -
close associate of a corporation means
each of the following:
(a) a director or officer of the
corporation or the spouse
of such a director or
officer;
(b) a related body corporate
of the corporation;
(c) a person whose voting
power in the corporation
or a related body
corporate of the
corporation is greater than
20% or the spouse of such
a person;
5
Electoral Amendment Act 2012
Act No. of
s. 6
(d) if the corporation or a
related body corporate of
the corporation is a
stapled entity in relation
to a stapled security, the
other stapled entity in
relation to that stapled
security;
(e) if the corporation is a
trustee, manager or
responsible entity in
relation to a trust, a
person who holds more
than 20% of the units in
the trust (in the case of a
unit trust) or is a
beneficiary of the trust (in
the case of a discretionary
trust);
entity means -
(a) an incorporated or
unincorporated body; or
(b) the trustee of a trust;
gift means any disposition of property
made by a person to another
person, otherwise than by will,
being a disposition made without
consideration in money or
money's worth or with
inadequate consideration, and
includes the provision of a
6
Electoral Amendment Act 2012
Act No. of
s. 6
service (other than volunteer
labour) for no consideration or
for inadequate consideration;
officer has the same meaning as in the
Corporations Act 2001 of the
Commonwealth;
political donation - see section 157E;
related body corporate has the same
meaning as in the Corporations
Act 2001 of the Commonwealth;
spouse of a person includes a person
who is in a significant
relationship, within the meaning
of the Relationships Act 2003,
with that person;
stapled entity means an entity the
interests in which are traded
along with the interests in another
entity as stapled securities and (in
the case of a stapled entity that is
a trust) includes any trustee,
manager or responsible entity in
relation to the trust;
tobacco industry business entity
means a corporation engaged in a
business undertaking that is
mainly concerned with the
manufacture, import or sale of
tobacco products, or a person
who is a close associate of such a
corporation;
7
Electoral Amendment Act 2012
Act No. of
s. 6
voting power has the same meaning as
in the Corporations Act 2001 of
the Commonwealth.
157D. Political donations by tobacco industry
business entities unlawful
(1) A tobacco industry business entity must
not make a political donation.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(2) A person must not accept a political
donation on behalf of a tobacco industry
business entity.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(3) A person must not accept a political
donation that was made (wholly or
partly) by a person on behalf of a tobacco
industry business entity.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(4) A tobacco industry business entity must
not solicit another person to make a
political donation.
8
Electoral Amendment Act 2012
Act No. of
s. 6
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(5) A person must not solicit another person
on behalf of a tobacco industry business
entity to make a political donation.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
157E. Meaning of political donation
(1) For the purposes of this Act, a -
political donation is -
(a) a gift made to or for the benefit of
a party; or
(b) a gift made to or for the benefit of
a Member; or
(c) a gift made to or for the benefit of
a candidate or intending
candidate; or
(d) a gift made to or for the benefit of
an entity or other person (not
being a party, Member, or
candidate or intending candidate),
the whole or part of which was
used or is intended to be used by
the entity or person -
9
Electoral Amendment Act 2012
Act No. of
s. 6
(i) to enable the entity or
person to make, directly
or indirectly, a political
donation; or
(ii) to reimburse the entity or
person for making,
directly or indirectly, a
political donation.
(2) An amount paid by a person as a
contribution, entry fee or other payment
to entitle that person or any other person
to participate in, or otherwise obtain any
benefit from, a fund-raising venture or
function organised for the benefit of a
candidate or intending candidate (being
an amount that forms part of the proceeds
of the venture or function) is taken to be
a gift for the purposes of this section.
(3) Subject to section 157G, an annual or
other subscription paid to a party by -
(a) a member of the party; or
(b) a person or entity (including an
industrial organisation) for
affiliation with the party -
is taken to be a gift to the party for the
purposes of this section.
10
Electoral Amendment Act 2012
Act No. of
s. 6
157F. Loans intended as political donations
(1) A loan that, if it had been a gift, would
be a political donation is to be regarded
as a political donation for the purposes of
this Part unless the loan is from a
financial institution.
(2) In this section -
financial institution means an entity
whose principal business is the
provision of financial services or
financial products, and includes a
bank, credit union, building
society or other entity prescribed
by the regulations;
loan means an advance of money, the
provision of credit or any other
transaction that in substance
effects a loan of money.
157G. Exception for membership contributions
An annual or other subscription paid to a
party by an individual or an organisation
as a member of the party or for the
individual's or organisation's affiliation
with the party is not a political donation
for the purposes of this Part unless it is a
political donation that exceeds $1 000 or
such other amount as may be prescribed
by the regulations.
11
Electoral Amendment Act 2012
Act No. of
s. 6
157H. Determination by Commission that person
not a tobacco industry business entity
(1) A person who proposes to make a
political donation (the applicant) may
apply to the Commission for a
determination by the Commission that
the applicant or another person in respect
of whom the applicant is making the
application is not a tobacco industry
business entity for the purposes of this
Part.
(2) The Commission -
(a) is authorised to make such a
determination if the Commission
is satisfied that it is more likely
than not that the person is not a
tobacco industry business entity;
and
(b) is to make its determination
solely on the basis of information
provided by the applicant.
(3) The Commission's determination
remains in force for 12 months after it is
made but can be revoked by the
Commission at any time by notice in
writing to the applicant.
(4) The Commission's determination is
conclusively presumed to be correct in
favour of any person for the purposes of
a political donation that the person makes
or accepts while the determination is in
12
Electoral Amendment Act 2012
Act No. of
s. 6
force (even if the determination is
subsequently found to be incorrect).
(5) The Commission's determination is not
presumed to be correct in favour of any
person who makes or accepts a political
donation knowing that information
provided to the Commission in
connection with the making of the
determination was false or misleading in
a material particular.
(6) The Commission is to maintain a public
register of the determinations made under
this section and is to publish the register
on a website maintained by the
Commission.
(7) A person who provides information to
the Commission in connection with an
application for a determination by the
Commission under this section knowing
that the information is false or
misleading in a material particular is
guilty of an offence.
Penalty: Fine not exceeding 200 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(8) The Commission may establish and
publicise policies as to how the
Commission will deal with applications
for determinations under this section.
13
Electoral Amendment Act 2012
Act No. of
s. 6
157I. Recovery of unlawful donations, &c.
If a person accepts a political donation,
loan or indirect campaign contribution
that is unlawful because of this Part, an
amount equal to the amount or value of
the donation, loan or contribution (or
double that amount if that person knew
that it was unlawful) is payable by that
person to the State and may be recovered
as a debt due to the Crown from -
(a) in the case of a donation, loan or
contribution received by a party,
the party secretary; or
(b) in any other case, the person who
received the donation, loan or
contribution or the election agent
of the person.
157J. Liability of directors, &c.
If a body corporate commits an offence
against this Part, each director or other
person concerned in the management of
the body corporate is guilty of the
offence and is liable to a penalty not
exceeding that prescribed for the offence
if it is proved that the director or other
person -
(a) was in a position to influence the
relevant conduct or omission
constituting the offence; or
14
Electoral Amendment Act 2012
Act No. of
s. 7
(b) failed to exercise all due
diligence to prevent the relevant
conduct or omission constituting
the offence; or
(c) failed to take all reasonable steps
to prevent the relevant conduct or
omission constituting the offence;
or
(d) encouraged or assisted in the
commission of the offence.
157K. Time within which proceedings must be
taken
Proceedings for an offence against a
provision of this Part must be made -
(a) within 3 years from the time
when the matter to which the
proceedings relate arises; and
(b) within 12 months from the time
when the matter to which the
proceedings relate comes to the
attention of the Electoral
Commissioner.
7. Part 6, Division 1: Heading amended
Division 1 of Part 6 of the Principal Act is
amended by inserting in the heading to that
Division "or intending candidate's" after
"Candidate's".
15
Electoral Amendment Act 2012
Act No. of
s. 8
8. Section 158 amended (Election agent)
Section 158 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or
intending candidate" after "candidate";
(b) by inserting in subsection (2) "or
intending candidate" after "candidate";
(c) by inserting in subsection (3) "or
intending candidate" after "candidate";
(d) by inserting in subsection (4) "or
intending candidate" after "a candidate";
(e) by inserting in subsection (4) "or
intending candidate" after "that
candidate".
9. Section 159 amended (Who may incur expenditure)
Section 159 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or
intending candidate" after "than a
candidate";
(b) by inserting in subsection (1) "or
intending candidate" after "of a
candidate";
(c) by inserting in subsection (1) "or
intending candidate" after "the
candidate";
16
Electoral Amendment Act 2012
Act No. of
s. 10
(d) by inserting in subsection (2) "or
intending candidate" after "a candidate";
(e) by inserting in subsection (2) "or
intending candidate" after "the
candidate";
(f) by inserting in subsection (3) "or
intending candidate" after "candidate";
(g) by inserting in subsection (3) "or
intending candidate's" after
"candidate's".
10. Section 162 amended (Party not to incur election
expenditure)
Section 162 of the Principal Act is amended as
follows:
(a) by inserting "or intending candidate"
after "a candidate";
(b) by inserting "or intending candidate"
after "the candidate";
(c) by inserting "or intending candidate"
after "endorsed candidate".
11. Section 181 amended (Offence to fail to vote)
Section 181 of the Principal Act is amended by
omitting subsection (3) and substituting the
following subsection:
17
Electoral Amendment Act 2012
Act No. of
s. 12
(3) Proceedings for an offence under
subsection (1) -
(a) may be instituted only by the
Commission or the Director of
Public Prosecutions; and
(b) may be instituted within the
period of 12 months from the
polling day of the election in
respect of which the offence
occurred.
12. Schedule 3 amended (Printing and collation of
ballot papers)
Schedule 3 to the Principal Act is amended as
follows:
(a) by omitting from clause 1A(3)
"clauses 2, 3, 4 and 5" and substituting
"clauses 2, 3 and 4";
(b) by omitting clause 5.
13. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
18 Government Printer, Tasmania