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FACT SHEET
Electoral Amendment Bill 2012
The Electoral Amendment Bill 2012 makes a number of amendments to the
Electoral Act 2004. Some are to clarify, simplify or correct certain provisions
and the others are to prohibit contributions by tobacco firms to political parties
and candidates for election purposes.
The Bill amends section 181 to allow for 12 months in which proceedings for
failure to vote may be commenced.
Under the Act, electors who fail to vote may be issued with an infringement
notice which is enforceable under the Monetary Penalties Enforcement Act 2005.
An elector who is issued with such an infringement notice may elect to have the
matter dealt with by a court. The issuing authority, in this case the Tasmanian
Electoral Commission, may then decide to prosecute the offence under section
181.
It is difficult and in many cases impossible for the Commission to prosecute the
elector for failure to vote under section 181 because, pursuant to the Justices
Act 1959, proceedings must be instituted within 6 months from the time when
the matter of complaint arose. The follow up process required by the Act in
relation to people who have not voted at an election can take longer than this.
The Bill also clarifies that certain Legislative Council election expenditure
restrictions apply not only in relation to candidates who have formally
nominated, but also to intending candidates.
In the former Electoral Act 1985, the definition of candidate included both a
nominated candidate and a person who had publicly announced his or her
intention to stand. When the Electoral Act 2004 was drafted, it was considered
appropriate to split this definition into two separate definitions, namely
"candidate" and "intending candidate". However "intending candidate" was
inadvertently omitted from the provisions dealing with spending.
The Bill also amends sections 158 and 159 to provide that an intending
candidate can appoint an election agent and then, only intending candidate or his
or her election agent may incur election expenditure. In addition, under
amendments to section 162, parties must not incur any expenditure with a view
to promoting the election of intending candidates, in the same way as currently
they may not spend money to promote the election of candidates.
The Bill provides that Clause 5 of Schedule 3 be deleted because it is
inconsistent with clause 1A of that Schedule. Clause 1A was inserted by the
Electoral Amendment Act 2009 and was one of a number of amendments to
Schedule 3 which doubled the number of Robson rotations on ballot papers by
adding another set of rotations, with the order of names under the top position
reversed, for each current rotation. These amendments further reduced any
remaining advantage that could have been gained from `linear' or so-called
`donkey' voting.
However to comply with Clause 1A it is not possible to also comply with
Clause 5 of the schedule and the Bill therefore provides that it is to be deleted.
The Bill also contains consequential amendments to section 4 and 28.
The bulk of the Bill however deals with the prohibition on tobacco firms making
contribution to political parties, candidates and intending candidates and to
sitting members of either House.
The Bill provides that tobacco industry business entities businesses mainly
engaged in manufacturing, importing or selling tobacco products and close
associates of such an entity directors, associated companies etc will not be
allowed to make political donations to political parties, candidates and intending
candidates and to sitting members of either House.
Political donations include gifts to parties, members, candidates and intending
candidates and includes both money and "in-kind" contributions other than
volunteer labour.
The Bill also covers the use of "entry fees" to fund raising activities or paying
party "membership subscriptions" to disguise what amount to donations.
There are a number of offences aimed at both the donor and recipient of
political donations which are made unlawful by this Act including an offence for
a tobacco industry business entity to make a political donation and for
candidates parties etc to accept a political donation from a tobacco industry
business entity.
In each case the penalty applicable is a fine of up to 200 penalty units (currently
$26,000) or imprisonment for up to 12 months or both. In addition the Bill
provides for the recovery of the unlawful donations from the party, Member or
candidate or in the case of Legislative Council members their "election agent".
The Bill extends the usual six month period during which a prosecution may be
commenced for breaches of this Part of the Act. Generally, by virtue of the
Justices Act provisions, charges for breaches of Acts (other than indictable
crimes) must be laid within six months of the offence occurring. As it is
possible that the type of offences under this Part will not come to light for some
time after the event especially giving the Electoral Commissioner false
information - the Bill provides additional time within which charges may be laid.