Election Funding, Expenditure and Disclosures Act 1981 (NSW)
An Act to make provision for the public funding of Parliamentary election campaigns and to require the disclosure of certain political donations and electoral expenditure for Parliamentary or local government election campaigns; and for other purposes.
This Act may be cited as the Election Funding, Expenditure and Disclosures Act 1981.
This Part shall commence on the date of assent to this Act.
Parts 2 and 8, sections 24 and 25 and Schedule 2 shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
Except as provided in subsections (1) and (2), this Act shall commence on such day (being not earlier than the day appointed and notified under subsection (2)) as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
(Repealed)
(Repealed)
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
(a) in relation to State elections—a by-election for the Assembly, or
(b) in relation to local government elections—a by-election for a councillor (including the mayor) of the council of a local government area.
(a) the allotment of shares in a company,
(b) the creation of a trust in property,
(c) the grant or creation of any lease, mortgage, charge, servitude, licence, power, partnership or interest in property,
(d) the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of any debt, contract or chose in action, or of any interest in property,
(e) the exercise by a person of a general power of appointment of property in favour of any other person, and
(f) any transaction entered into by any person with intent thereby to diminish, directly or indirectly, the value of the person’s own property and to increase the value of the property of any other person.
(a) a member of Parliament, or
(b) a councillor (including the mayor) of the council of a local government area,
and includes a person who, during any period after ceasing to be a member of Parliament or a councillor, is entitled to remuneration as such a member or councillor.
(a) in relation to State elections—an Assembly general election and a periodic Council election held or to be held concurrently, or
(b) in relation to local government elections—a local government election other than a by-election.
(a) in relation to State elections—a group of candidates, or part of a group of candidates, for a periodic Council election, or
(b) in relation to local government elections—a group of candidates, or part of a group of candidates, for a local government election.
(a) in the case of a general election in any year—the period from and including 1 July in that year to the end of polling day for the election,
(b) in any other case—the period from and including the day on which the date of the election is publicly notified by the person conducting the election to the end of polling day for the election.
(a) in relation to an elected member of Parliament who is a member of a registered party—the party agent of the party (or a person appointed official agent in place of the party agent under section 46A), or
(b) in relation to any other elected member who is a candidate or member of a group—the official agent of the candidate or group, or
(c) in relation to a State election candidate who is a member of a registered party—the party agent of the party (or a person appointed official agent in place of the party agent under section 46), or
(d) in relation to a State election group whose members are all members of a registered party—the party agent of the party (or a person appointed official agent in place of the party agent under section 46), or
(e) in relation to a candidate or group of a class specified in the regulations for the purposes of this paragraph—the Electoral Commission or a government agency so specified, or
(f) in relation to any other candidate or group—the official agent registered in the Register of Official Agents for that candidate or group (or the person taken to be the official agent under section 46), or
(f1) in relation to an elected member for whom an official agent, appointed by the member under section 46A, is registered in the Register of Official Agents—that official agent, or
(f2) in relation to a third-party campaigner for whom an official agent, appointed by the campaigner under section 46B, is registered in the Register of Official Agents—that official agent, or
(g) in any other case—a person (including the elected member, candidate or third-party campaigner concerned) designated by the Electoral Commission.
For the purposes of this definition, if some of the candidates in a State election group are members of one registered party and other candidates in the group are members of another registered party, the official agent of the group is the party agent of one of those parties as is designated by those candidates.
(a) for a State election—an entity or other person (not being a registered party, elected member, group or candidate) who incurs electoral communication expenditure for a State election during a capped State expenditure period that exceeds $2,000 in total, or
(b) for a local government election—an entity or other person (not being a party, elected member, group or candidate) who incurs electoral communication expenditure for a local government election during a local government expenditure period that exceeds $2,000 in total.
A reference in this Act to the exercise of a function includes, where the function is a duty, a reference to the performance of that duty.
For the purposes of this Act, an Assembly general election and a periodic Council election are held or are to be held concurrently if the day for the taking of the polls for each of the elections named in the writs for the elections is the same day, whether or not the taking of any such poll is adjourned.
For the purposes of this Act, where the writs for a general election are issued on different days, the day of the issue of the writs for the general election shall be deemed to be the day on which the writ for the periodic Council election is issued.
For the purposes of this Act, where the days for the return of the writs for a general election are different, the day for the return of the writs shall be deemed to be the day for the return of the writ for the periodic Council election.
A reference in this Act to the day for the return of a writ is a reference to the day specified in the writ as the day for the return of the writ.
A reference in this Act, in relation to a general election, to the periodic Council election is, except in so far as the context or subject-matter otherwise indicates or requires, a reference to the periodic Council election which forms part of the general election.
For the purposes of this Act, where anything is done by, on behalf of or for the benefit of, or any property is held by, or in trust for or for the members of, a body or organisation, incorporated or unincorporated, being a body or organisation that:
(a) forms part of a party,
(b) is established by or under the constitution of a party, or
(c) has functions conferred by or under the constitution of a party,
the thing shall be deemed to be done by, on behalf of or for the benefit of that party or the property shall be deemed to be held by that party, as the case may be.
(Repealed)
Notes included in this Act do not form part of this Act.
The objects of this Act are as follows:
(a) to establish a fair and transparent election funding, expenditure and disclosure scheme,
(b) to facilitate public awareness of political donations,
(c) to help prevent corruption and undue influence in the government of the State or in local government,
(d) to provide for the effective administration of public funding of elections, recognising the importance of the appropriate use of public revenue for that purpose,
(e) to promote compliance by parties, elected members, candidates, groups, agents, third-party campaigners and donors with the requirements of the election funding, expenditure and disclosure scheme.
(Repealed)
The Electoral Commission has the functions conferred or imposed on it under this Act.
The Electoral Commission is to have regard to the objects of this Act in exercising its functions under this Act.
Without affecting the generality of section 22, the Electoral Commission has the responsibility of dealing with:
(a) applications for registration under Part 4, and
(b) claims for payments under Part 5, and
(c) disclosures of, and caps on, political donations and electoral expenditure under Part 6, and
(d) claims for payments under Part 6A.
For the purpose of ensuring compliance with this Act, the Electoral Commission is authorised to make an application to the Supreme Court for an injunction, declaration or other order that is within the jurisdiction of the Court.
The Electoral Commission may, from time to time, determine and issue guidelines, not inconsistent with this Act or the regulations, for or with respect to any matters dealt with in this Act (except this Part).
In the operation and application of this Act (except this Part), regard shall be had not only to the provisions of this Act and the regulations but also to the guidelines determined under subsection (1), and in particular, the Electoral Commission shall have regard to those guidelines when dealing with applications, claims, caps and disclosures referred to in section 23.
(Repealed)
This Part applies to the registration of candidates, groups, third-party campaigners and agents for State elections and local government elections.
The following persons are not qualified to be appointed as party agents or official agents:
(a) a corporation,
(b) a person who is not enrolled to vote at State elections,
(c) a person who has been convicted of an indictable offence, an offence against this Act, an offence involving dishonesty or an electoral offence,
(d) a person whom the Electoral Commission determines is not a fit and proper person to be such an agent,
(e) a person who has not completed the training prescribed by the regulations for appointment as such an agent (unless the person is of a class of persons recognised by the regulations as a person eligible for appointment without further training).
A person may be appointed as the official agent of more than one candidate or group.
The Electoral Commission may cancel the registration under this Part of a person as a party agent or an official agent if the person is no longer qualified to be appointed as such an agent.
(Repealed)
The Electoral Commission shall keep a register, to be called the Register of Candidates, for each general election.
The Electoral Commission is to keep separate Registers of Candidates for State and local government elections. The register for State elections may be called the State Register of Candidates and the register for local government elections may be called the Local Government Register of Candidates.
The Register of Candidates for a general election shall be kept as from the polling day for the previous general election.
Subject to this Act, the Register of Candidates shall be kept in such form and manner as the Electoral Commission thinks fit.
Registration of a candidate shall be effected by the insertion in the Register of Candidates of the name of the candidate.
Registration of a group of candidates shall be effected by the insertion in the Register of Candidates, in relation to candidates registered therein, of an indication that the candidates form a group.
There shall be included in the Register of Candidates:
(a) such particulars with respect to a candidate or group registered in the Register as are required to be included in the application for registration of the candidate or group,
(b) particulars of the platform or objectives of the candidate or group, if the candidate or group requests the Electoral Commission to include those particulars, and
(c) such other particulars as the Electoral Commission thinks fit.
A person nominated as a candidate at an election in accordance with the Parliamentary Electorates and Elections Act 1912 or in accordance with the Local Government Act 1993 is deemed to be registered as a candidate for the election.
The candidates who comprise a group at an election are deemed to be registered as a group for the election.
The Electoral Commission is to make appropriate entries in the Register of Candidates for an election to effect the registration of a candidate or group deemed under this section to be registered for the election.
Subject to this Act, the Electoral Commission shall register a person as a candidate in the Register of Candidates for a general election if:
(a) application for registration is made by the person or the person’s official agent in the form and manner approved by the Electoral Commission, and
(b) the application is received by the Electoral Commission on or before the day of nomination for the general election and after the polling day for the previous general election.
An application for registration of a candidate shall set out the following particulars:
(a) the full name and address of the candidate,
(b) the candidate’s party or group affiliation (if any),
(c) in the case of a State election, the House of Parliament for which the candidate is a candidate,
(c1) in the case of a local government election, the council for which the candidate is a candidate,
(d) the address of the candidate’s campaign headquarters in New South Wales, and
(e) such other particulars as may be prescribed.
Subject to this Act, the Electoral Commission shall register a group of candidates in the Register of Candidates for a general election if:
(a) application for registration is made by the candidates or their official agents, or by the official agent for the group, in the form and manner approved by the Electoral Commission, and
(b) the application is received by the Electoral Commission on or before the day of nomination for the general election and after the polling day for the previous general election.
An application for the registration of a group of candidates shall set out the following particulars:
(a) the full name (if any) of or used or to be used by the group,
(b) the full names of the candidates, and
(c) such other particulars as may be prescribed.
An application for registration in the Register of Candidates may be lodged with an election official designated by the Electoral Commission or with the Electoral Commission.
An application lodged with an election official shall be deemed to have been received by the Electoral Commission.
An election official with whom an application for registration in the Register of Candidates is lodged shall forthwith forward the application to the Electoral Commission.
The Electoral Commission shall not register a candidate in the Register of Candidates for a general election if the application for registration of the candidate was received by the Electoral Commission after the day of nomination for the general election.
The Electoral Commission may refuse to register a candidate if the Electoral Commission believes on reasonable grounds that any particulars in the application for registration of the candidate are incomplete or not correct, but may, if it thinks fit, register the candidate notwithstanding any such defect.
Where, pursuant to subsection (2), the Electoral Commission refuses to register a candidate:
(a) the Electoral Commission shall forthwith notify the candidate’s official agent of the refusal and of the reasons for the refusal,
(b) the official agent may, within 30 days after the date of the notification by the Electoral Commission, amend the application for registration by substituting the relevant particulars, and
(c) the amended application shall be deemed to have been received by the Electoral Commission when the original application was received by it.
The Electoral Commission shall not register a group in the Register of Candidates for a general election if the application for registration of the group was received by the Electoral Commission after the day of nomination for the general election.
The Electoral Commission may refuse to register a group if the Electoral Commission believes on reasonable grounds that any particulars in the application for registration of the group are incomplete or not correct, but may, if it thinks fit, register the group notwithstanding any such defect.
Where, pursuant to subsection (2), the Electoral Commission refuses to register a group:
(a) the Electoral Commission shall forthwith notify the group’s official agent of the refusal and of the reasons for the refusal,
(b) the official agent may, within 30 days after the date of the notification by the Electoral Commission, amend the application for registration by inserting or substituting the relevant particulars, and
(c) the amended application shall be deemed to have been received by the Electoral Commission when the original application was received by it.
The Electoral Commission may refuse to register a group if, in the opinion of the Electoral Commission, the name of the group is obscene or offensive.
Where, pursuant to subsection (4), the Electoral Commission refuses to register a group:
(a) the Electoral Commission shall forthwith notify the group’s official agent of the refusal and of the reasons for the refusal,
(b) the official agent may, within 30 days after the date of the notification by the Electoral Commission, amend the application for registration by substituting the name of the group, and
(c) the amended application shall be deemed to have been received by the Electoral Commission when the original application was received by it.
Where an alteration is made in any of the particulars as stated in the Register of Candidates in relation to a candidate or group, being particulars of the kind required to be stated in the application for registration of the candidate or group, the candidate’s or group’s official agent shall, within 30 days after the date of the alteration, furnish the Electoral Commission with a statement in writing setting out details of the alteration.
Maximum penalty: 2 penalty units.
Where the Electoral Commission believes on reasonable grounds that a candidate’s or group’s official agent has not furnished the Electoral Commission with a statement setting out details of any alteration, as referred to in subsection (1), the Electoral Commission may, by notice in writing served on the official agent, require the official agent to furnish such a statement before the date specified in the notice, or before the date of expiry of the period of 30 days after service of the notice, whichever is later.
If a candidate’s or group’s official agent fails to furnish a statement in accordance with subsection (2), the Electoral Commission may cancel the registration of the candidate or group.
The Electoral Commission shall vary the particulars set out in the Register of Candidates in relation to a candidate or group in accordance with a statement furnished in accordance with this section or in accordance with the written request of the candidate’s or group’s official agent, unless the Electoral Commission believes on reasonable grounds that the varied particulars are not correct.
The Electoral Commission may cancel the registration of a candidate or group at the written request of the candidate’s or group’s official agent.
The Electoral Commission may, of its own accord or on request, omit any particulars from the Register of Candidates if it is satisfied that the particulars are not correct.
The Electoral Commission may, of its own accord or on request, insert any particulars in the Register of Candidates if it is satisfied that the particulars are correct.
The Electoral Commission shall notify the relevant official agent of any alterations made to the Register of Candidates pursuant to this section.
The provisions of subsections (1)–(4) do not, if the regulations so provide, apply to particulars or alterations of a class or description specified in the regulations for the purposes of this subsection.
The Electoral Commission is to keep a register, to be called the Register of Third-party Campaigners, for each general election.
The Electoral Commission is to keep separate Registers of Third-party Campaigners for State and local government elections. The register for State elections may be called the State Register of Third-party Campaigners and the register for local government elections may be called the Local Government Register of Third-party Campaigners.
The Register of Third-party Campaigners for a general election is to be kept as from the polling day for the previous general election.
Subject to this Act, the Register of Third-party Campaigners is to be kept in such form and manner as the Electoral Commission thinks fit.
Registration of a third-party campaigner is to be effected by the insertion in the Register of Third-party Campaigners of the name of the third-party campaigner.
There is to be included in the Register of Third-party Campaigners:
(a) such particulars as are required to be included in the application for registration of the third-party campaigner, and
(b) such other particulars as the Electoral Commission thinks fit.
Subject to this Act, the Electoral Commission is to register a person as a third-party campaigner in the Register of Third-party Campaigners for a general election if:
(a) application for registration is made by the person or the person’s official agent in the form and manner approved by the Electoral Commission, and
(b) the application is received by the Electoral Commission before the 7th day before polling day for the general election and after the polling day for the previous general election.
An application for registration of a person as a third-party campaigner must set out the following particulars:
(a) the full name and address of the person,
(b) such other particulars as may be prescribed.
The application for registration is to be accompanied by an appointment of the official agent of the third-party campaigner.
An application for registration in the Register of Third-party Campaigners may be lodged with an election official designated by the Electoral Commission or with the Electoral Commission.
An application lodged with an election official is deemed to have been received by the Electoral Commission.
An election official with whom an application for registration is lodged must forthwith forward the application to the Electoral Commission.
The Electoral Commission must not register a person in the Register of Third-party Campaigners for a general election if the application for registration was received by the Electoral Commission on or after the 7th day before polling day for the general election.
The Electoral Commission may refuse to register a person as a third-party campaigner if the Electoral Commission believes on reasonable grounds that any particulars in the person’s application for registration are incomplete or not correct, but may, if it thinks fit, register the person notwithstanding any such defect.
Where, pursuant to subsection (2), the Electoral Commission refuses to register a person as a third-party campaigner:
(a) the Electoral Commission must forthwith notify the person’s official agent of the refusal and of the reasons for the refusal, and
(b) the official agent may, within 30 days after the date of the notification by the Electoral Commission, amend the application for registration by substituting the relevant particulars, and
(c) the amended application is deemed to have been received by the Electoral Commission when the original application was received by it.
Where an alteration is made in any of the particulars as stated in the Register of Third-party Campaigners in relation to a person, being particulars of the kind required to be stated in the application for registration of the person, the person’s official agent must, within 30 days after the date of the alteration, furnish the Electoral Commission with a statement in writing setting out details of the alteration.
Maximum penalty: 2 penalty units.
Where the Electoral Commission believes on reasonable grounds that a third-party campaigner’s official agent has not furnished the Electoral Commission with a statement setting out details of any alteration, as referred to in subsection (1), the Electoral Commission may, by notice in writing served on the official agent, require the official agent to furnish such a statement before the date specified in the notice, or before the date of expiry of the period of 30 days after service of the notice, whichever is later.
If a third-party campaigner’s official agent fails to furnish a statement in accordance with subsection (2), the Electoral Commission may cancel the registration of the third-party campaigner.
The Electoral Commission is to vary the particulars set out in the Register of Third-party Campaigners in relation to a person in accordance with a statement furnished in accordance with this section or in accordance with the written request of the person’s official agent, unless the Electoral Commission believes on reasonable grounds that the varied particulars are not correct.
The Electoral Commission may cancel the registration of a third-party campaigner at the written request of the person’s official agent.
The Electoral Commission may, of its own accord or on request, omit any particulars from the Register of Third-party Campaigners if it is satisfied that the particulars are not correct.
The Electoral Commission may, of its own accord or on request, insert any particulars in the Register of Third-party Campaigners if it is satisfied that the particulars are correct.
The Electoral Commission is to notify the relevant official agent of any alterations made to the Register of Third-party Campaigners pursuant to this section.
The provisions of subsections (1)–(4) do not, if the regulations so provide, apply to particulars or alterations of a class or description specified in the regulations for the purposes of this subsection.
The Electoral Commission shall keep a register, to be called the Register of Party Agents.
The Electoral Commission is to keep separate Registers of Party Agents for State and local government elections. The register for State elections may be called the State Register of Party Agents and the register for local government elections may be called the Local Government Register of Party Agents.
The Register of Party Agents shall be kept on a continuous basis.
Subject to this Act, the Register of Party Agents shall be kept in such form and manner as the Electoral Commission thinks fit.
Registration of a party agent shall be effected by the insertion in the Register of Party Agents of the name of the party agent and the name of the party by which the party agent was appointed.
There shall be included in the Register of Party Agents the address and occupation of each party agent, and such other particulars as the Electoral Commission thinks fit.
A party shall appoint one party agent.
If at any time a party does not have a party agent appointed under this section, the party agent is the person who holds office at that time as the registered officer of the party under Part 4A of the Parliamentary Electorates and Elections Act 1912 or under the Local Government Act 1993, as the case requires.
The appointment of a party agent may be revoked.
If a party agent dies or resigns, the party by which the party agent was appointed shall forthwith give notice of that fact in writing to the Electoral Commission.
If a party agent dies or resigns or his or her appointment is revoked, the party by which the party agent was appointed shall appoint another party agent in his or her place.
The appointment, or the revocation of the appointment, of a party agent shall be made by notice in writing furnished to the Electoral Commission, but does not take effect until the appropriate action has been taken under section 42.
A notice under this section shall be in the form approved by the Electoral Commission.
A notice of the appointment of a party agent shall be deemed not to have been properly given unless it is accompanied by the signed acceptance of appointment of the person appointed.
A person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912 is not eligible to be a party agent.
If a party fails to comply with a provision of this section:
(a) the party is guilty of an offence and liable to a penalty not exceeding 200 penalty units, and
(b) each person who, at the time the failure occurred, was an officer of the party is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
On receipt of a notice of the appointment of a party agent furnished under section 41, the Electoral Commission shall register the party agent in the Register of Party Agents.
On receipt of a notice furnished under section 41 of the death or resignation, or the revocation of the appointment, of a party agent, the Electoral Commission shall remove the name of the party agent from the Register of Party Agents.
The Electoral Commission may reject a notice referred to in subsection (1) or (2) if, in its opinion, the notice is not in accordance with this Act.
The Electoral Commission may amend the Register of Party Agents by:
(a) correcting a mistake or omission, or
(b) recording a change in the name, address or occupation of a party agent or a change in the name of the party by which a party agent was appointed.
The Electoral Commission shall keep a register, to be called the Register of Official Agents, for each general election.
The Register of Official Agents for a general election shall be kept as from the polling day for the previous general election.
Subject to this Act, the Register of Official Agents shall be kept in such form and manner as the Electoral Commission thinks fit.
Registration of an official agent shall be effected by the insertion in the Register of Official Agents of the name of the official agent and the name of the candidate, group, elected member or third-party campaigner by whom the official agent was appointed.
There shall be included in the Register of Official Agents the address and occupation of each official agent, and such other particulars as the Electoral Commission thinks fit.
A candidate or group must appoint one official agent (an
If a party agent of a party is the ex officio official agent of a candidate or group under paragraph (c) or (d) of the definition of
The appointment of an official agent by a candidate or group may be revoked by the candidate or group and, in the case of the appointment of an official agent in place of a party agent, may also be revoked by the party agent.
If an appointed official agent of a candidate or group dies or resigns, the candidate or group by whom the official agent was appointed must forthwith give notice of that fact in writing to the Electoral Commission.
If an appointed official agent of a candidate or group dies or resigns or his or her appointment is revoked, the candidate or group by whom the official agent was appointed must appoint another official agent in his or her place unless the appointed official agent was appointed in place of a party agent (in which case the appointment of another official agent is optional and requires the consent of the party agent).
At any time when a candidate or group required to appoint an official agent under this section does not have an appointed official agent:
(a) the candidate is deemed to be his or her own official agent, or
(b) the candidate whose name first appears on the list of members of the group is deemed to be the official agent of the group.
This does not apply to the optional appointment of an official agent in place of a party agent.
For the purposes of the disclosure under Part 6 of political donations received and electoral expenditure incurred by or on behalf of a candidate or group:
(a) a person remains the appointed official agent of a candidate or group despite the candidate or group ceasing to be a candidate or group, and
(b) the appointment under this section of an official agent of a candidate or group remains in force despite the candidate or group ceasing to be a candidate or group, and
(c) this Division continues to apply after the candidate or group ceases to be a candidate or group, as if the former candidate or group were still a candidate or group for the election concerned.
For example, the former candidate or group will be required to appoint another official agent following the death or resignation of an official agent after the election and before the Part 6 disclosure requirements have been fully complied with.
If a candidate or group contravenes a provision of this section, the candidate or each member of the group is guilty of an offence.
Maximum penalty: 100 penalty units.
An elected member may appoint one official agent (an
If a party agent is the ex officio official agent of an elected member under paragraph (a) of the definition of
If an elected member does not have an ex officio official agent and does not appoint an official agent, the Electoral Commission will designate a person as official agent for the elected member. See paragraph (g) of the definition of
The appointment of an official agent by an elected member may be revoked by the elected member and, in the case of the appointment of an official agent in place of a party agent, may also be revoked by the party agent.
If the appointed official agent of an elected member dies or resigns, the elected member must forthwith give notice of that fact in writing to the Electoral Commission.
If an appointed official agent of an elected member dies or resigns or his or her appointment is revoked, the elected member may appoint another official agent in his or her place unless the appointed official agent was appointed in place of a party agent (in which case the appointment of another official agent is optional and requires the consent of the party agent).
A third-party campaigner may appoint one official agent (an
If a third-party campaigner does not appoint an official agent, the Electoral Commission can designate a person as official agent. See paragraph (g) of the definition of official agent in section 4 (1).
The appointment of an official agent may be revoked.
If the appointed official agent of a third-party campaigner dies or resigns, the third-party campaigner must forthwith give notice of that fact in writing to the Electoral Commission.
If an appointed official agent of a third-party campaigner dies or resigns or his or her appointment is revoked, the third-party campaigner may appoint another official agent in his or her place.
The appointment, or the revocation of the appointment, of an official agent is to be made by notice in writing to the Electoral Commission.
A notice under this Division is to be in the form approved by the Electoral Commission.
A notice of the appointment of an official agent is not properly given unless it is accompanied by the signed acceptance of appointment of the person appointed.
A person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912 is not eligible to be an official agent.
On receipt of a notice of the appointment of an official agent furnished under this Division, the Electoral Commission shall register the official agent in the Register of Official Agents.
On receipt of a notice furnished under this Division of the death or resignation, or the revocation of the appointment, of an official agent, the Electoral Commission shall remove the name of the official agent from the Register of Official Agents.
The Electoral Commission may reject a notice referred to in subsection (1) or (2) if, in its opinion, the notice is not in accordance with this Act.
The Electoral Commission may include in the Register of Official Agents particulars of the persons who are official agents because of the office they hold and not because of an appointment under this Division.
The Electoral Commission may amend the Register of Official Agents by:
(a) correcting a mistake or omission, or
(b) recording a change in the name, address or occupation of an official agent or, in the case of an official agent appointed by a group, a change in the composition or name of the group.
(Repealed)
This Division applies to and in respect of each by-election (referred to in this Division as
The Electoral Commission is to keep 3 registers, to be called the Register of Candidates, the Register of Third-party Campaigners and the Register of Official Agents respectively, for the by-election.
The registers are to be kept as from:
(a) in the case of a State election—the day of the issue of the writ for the by-election, or
(b) in the case of a local government election—the day for the close of the roll of electors for the by-election.
Subject to this Act, the registers shall be kept in such form and manner as the Electoral Commission thinks fit.
The provisions of Divisions 2, 2A and 4 apply to and in respect of the Register of Candidates, the Register of Third-party Campaigners and the Register of Official Agents for the by-election in the same way as they apply to and in respect of the Register of Candidates, the Register of Third-party Campaigners and the Register of Official Agents under those Divisions, and so apply as if:
(a) in the case of a State election, references to groups were omitted, and
(b) references to a general election were references to the by-election, and
(c) any other necessary adaptations were made.
Copies of each register kept under this Part shall be retained by the Electoral Commission and be available for public inspection during ordinary office hours.
(Repealed)
The Electoral Commission may require any particulars in an application or notice under this Part to be verified by statutory declaration.
A person who, in any application or statement made or furnished under this Part, makes a statement that is false or misleading in a material particular, knowing it to be false or not reasonably believing it to be true, is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
This Part does not apply in relation to local government elections.
Accordingly, a reference in this Part to an election is a reference that relates to a State election.
The application of this Part in relation to the 2015 State general election is modified by Part 7A.
Words and expressions used in this Part and in Part 6 have the same meaning in this Part as they have in that Part, except where the contrary intention appears.
For the purposes of this Part, electoral communication expenditure for a State election is electoral communication expenditure incurred during the capped State expenditure period for the election.
The decision of the Electoral Commission as to whether any expenditure is or is not electoral communication expenditure in accordance with this Act, the regulations and the guidelines determined under section 24 is final. The Auditor-General or an auditor is, for the purposes of this Act, entitled to rely on any such decision of the Electoral Commission.
There is to be an Election Campaigns Fund to be kept by the Electoral Commission in respect of State elections.
Payments from the Election Campaigns Fund are to be distributed in accordance with this Part.
Parties are, subject to and in accordance with this Act, eligible for payments from the Election Campaigns Fund in respect of a State election (other than a by-election for the Assembly).
A party is eligible for payments from the Election Campaigns Fund in respect of any such State election if:
(a) it is a registered party on polling day for the State election, and
(b) it endorses candidates who are duly nominated for the State election and the Electoral Commission is satisfied that the candidates claim to be endorsed by the party, and
(c) it satisfies at least one of the party eligibility criteria.
The party eligibility criteria are as follows:
(a) in the case of an Assembly general election—the total number of first preference votes received by all those candidates endorsed by a party is at least 4% of the total number of first preference votes in all electoral districts in which the candidates were duly nominated for election,
(b) in the case of a periodic Council election—the total number of first preference votes received by all those candidates endorsed by a party (and by all other candidates included in the same group) is at least 4% of the total number of first preference votes in that election,
(c) in the case of any election—at least one of those candidates endorsed by a party is elected at the State election.
In this section:
(a) did not endorse any candidate for election in the Assembly, or
(b) only endorsed candidates for election in the Assembly in not more than 10 electorates.
The amount to be distributed from the Election Campaigns Fund to a party eligible for payment from the Fund in respect of a State election is the amount set out in the Table to this section.
100% of so much of the actual expenditure of the party as is within 0–10% of the applicable expenditure cap, plus
75% of so much of the actual expenditure of the party as is within the next 10–90% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the party as is within the last 90–100% of the applicable expenditure cap.
100% of so much of the actual expenditure of the party as is within zero to one third of the applicable expenditure cap, plus
75% of so much of the actual expenditure of the party as is within the next one third to two thirds of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the party as is within the last two thirds to 100% of the applicable expenditure cap.
Candidates are, subject to and in accordance with this Act, eligible for payments from the Election Campaigns Fund in respect of a State election.
A candidate who is duly nominated for a State election is eligible for payments from the Election Campaigns Fund in respect of the election if:
(a) the candidate is registered as such a candidate in the Register of Candidates for the election on polling day for the election, and
(b) in the case of a candidate for a periodic Council election, the candidate was not included in a group, or was included in a group none of whose members were endorsed by a party, and
(c) the candidate satisfies at least one of the candidate eligibility criteria.
The candidate eligibility criteria are as follows:
(a) in the case of an Assembly general election or by-election for the Assembly—the candidate is elected or the total number of first preference votes received by the candidate is at least 4% of the total number of first preference votes in the electoral district in which the candidate was duly nominated for election,
(b) in the case of a periodic Council election—the candidate is elected or the total number of first preference votes received by the candidate (and, if included in a group, by all other candidates included in the same group) is at least 4% of the total number of first preference votes in the election.
In this section:
The amount to be distributed from the Election Campaigns Fund to a candidate eligible for payment from the Fund in respect of a State election is the amount set out in the Table to this section.
100% of so much of the actual expenditure of the candidate as is within 0–10% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is within the next 10–50% of the applicable expenditure cap.
100% of so much of the actual expenditure of the candidate as is within 0–10% of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is within the next 10–80% of the applicable expenditure cap.
100% of so much of the actual expenditure of the candidate as is within zero to one third of the applicable expenditure cap, plus
75% of so much of the actual expenditure of the candidate as is within the next one third to two thirds of the applicable expenditure cap, plus
50% of so much of the actual expenditure of the candidate as is within the last two thirds to 100% of the applicable expenditure cap.
The same item of electoral communication expenditure cannot, for the purposes of this Division, be included as expenditure of both a candidate and the party that endorses the candidate.
If any such item of expenditure is claimed by both the candidate and the party, the expenditure is taken to be that of the party and not the candidate.
If the Electoral Commission is satisfied that 2 or more registered parties endorse the same candidate or same group of candidates for a State election and that the candidate or candidates each claim to be endorsed by those parties:
(a) those parties are taken, for the purposes of this Part, to constitute one registered party instead of 2 or more registered parties in relation to the candidate or candidates at that election, and
(b) the amount that would otherwise be payable from the Election Campaigns Fund to that one registered party in respect of the election is payable instead to those 2 or more registered parties as shared funding.
An amount payable to 2 or more parties as shared funding is payable to them:
(a) in equal shares, or
(b) in such other shares as the party agents of those parties agree on and as are specified in a direction in writing (a
shared funding direction ) signed by them and served on the Electoral Commission.
If a registered party would, but for this subsection, be entitled to be paid 2 or more amounts by virtue of subsection (1), the party is entitled to be paid only one of those amounts, being the largest amount.
A shared funding direction remains effective until revoked by the party agents of the parties concerned and notice in writing of the revocation is served on the Electoral Commission.
A registered party is, subject to and in accordance with this Act, eligible for an advance payment from the Election Campaigns Fund for electoral communication expenditure incurred in connection with a general election of an amount determined in accordance with subsection (2).
The amount payable, by way of advance payment, is an amount equal to 30% of the total amount to which the party was entitled under this Part (other than under section 67) in respect of the previous general election.
The amount payable by way of an advance payment under this section may be paid, as a lump sum or by way of instalments, at any time after the commencement of the capped State expenditure period for the election.
Any amount paid to a party by way of advance payment under this section in respect of a general election is to be deducted from the amount payable under this Part to the party from the Election Campaigns Fund in respect of that general election.
If a party receives amounts by way of advance payment under this section in respect of a general election in excess of the amount (if any) to which it becomes entitled under this Part from the Election Campaigns Fund in respect of that general election, the amount of the excess must be repaid to the Electoral Commission within 60 days after the day for the return of the writs for that general election.
Any amount received by a party by way of advance payment under this section in respect of a general election must be repaid, on demand by the Electoral Commission, to the Electoral Commission if:
(a) the party does not contest the general election, or
(b) before the polling day for the general election, the party ceases to operate or be registered or it has been, or is being, dissolved or wound up.
Any amount required to be repaid under this section may be recovered by the Electoral Commission as a debt in any court of competent jurisdiction.
This section does not apply to the first general election to be held in 2011.
A claim for payment under this Part (other than an advance payment) in respect of a State election must be lodged with the Electoral Commission before the expiration of 120 days after the day for the return of the writs for the election.
Section 106 authorises the Electoral Commission to extend the time for lodging a claim for payment.
Subject to this Act, the Electoral Commission must:
(a) approve the making of the payment under this Part if:
(i) a claim for the payment is made by the party or party agent for the party, or by the official agent of the candidate, in the form and manner approved by the Electoral Commission, and
(ii) the claim is reviewed by an auditor in accordance with section 65, and
(iii) the Electoral Commission is satisfied that the party or candidate is eligible for the payment, or
(b) refuse to approve the making of the payment under this Part to the extent that the payment would exceed the amount of electoral communication expenditure for which payment may be made under this Part.
In assessing a claim for payment under this Part, the Electoral Commission may require the applicant to provide the Electoral Commission with further or other information relative to the assessment.
If the Electoral Commission is satisfied that it is proper to do so, it may disallow, wholly or in part, any items of expenditure covered by a claim under this Part.
A claim under this Part is not validly lodged with the Electoral Commission unless it is accompanied by a certificate of an auditor stating:
(a) that the auditor was given full and free access at all reasonable times to all accounts, records, documents and papers of the agent by whom the claim is to be lodged, and of the party or candidate, as the case may require, relating directly or indirectly to the expenditure referred to in the claim, and
(b) that the auditor duly examined such of those accounts, records, documents and papers as the auditor considers material for the purpose of giving the certificate, and
(c) that the auditor received all information and explanations that the auditor asked for with respect to the expenditure referred to in the claim, subject to the qualifications (if any) specified in the certificate, and
(d) that the auditor is satisfied that, from the information available to the auditor, the expenditure specified in the claim was incurred and is, having regard to this Act, the regulations and the guidelines determined under section 24, expenditure which may properly be the subject of such a claim, and
(e) that the auditor has no reason to think that any statement in the claim is not correct.
A claim under this Part is not validly lodged with the Electoral Commission unless all expenditure specified in the claim is vouched for in the manner prescribed by the regulations.
A candidate to whom a payment is to be made under this Part in respect of an election may direct the Electoral Commission to make the payment to a party that:
(a) endorsed the candidate in that election, and
(b) was a registered party on the polling day for that election.
In that case, the party becomes entitled to the payment and the payment is to be made to that party instead of to that candidate.
A direction under this section:
(a) may be made in anticipation of an entitlement to a payment under this Part, and
(b) is required to be made in writing, and
(c) may be revoked by the candidate by notice to the Electoral Commission given with the written consent of the party agent of the party.
Subject to this Act, a payment to be made to a party or candidate under this Part is to be made to the party or party agent of the party or to the official agent of the candidate (as the case requires).
The Electoral Commission may instead, if it thinks it proper to do so in the circumstances, direct that the whole or any part of a payment under this Part be made to a specified account with a financial institution established for or in trust for a party, for the members of a party or for a candidate.
Despite subsections (1) and (2), payments to be made to a candidate are required to be paid into the campaign account of the candidate if such an account is required to be kept under section 96A.
Subject to and in accordance with the regulations, the Electoral Commission may, if it thinks it proper to do so in the circumstances, direct that the whole or any part of a payment under this Part be made to a person, body or organisation other than the party, party agent or official agent referred to in subsection (1).
Except as prescribed by the regulations, details of any direction under subsection (4) are to be included in the report of the Electoral Commission under section 107 (2) for the reporting period in which the direction was given.
Payments may be made under this Part to an agent subject to such reasonable conditions with respect to the disbursement of the amount paid as the Electoral Commission determines.
An agent must comply with any condition determined in accordance with subsection (6) and applicable to the agent or any of his or her predecessors.
Maximum penalty: 100 penalty units.
It is a defence to a prosecution for an offence arising under subsection (7) if the agent establishes that the agent did not know, and could not reasonably have known, that the condition was applicable as referred to in that subsection.
Where a payment is made under this Part and the recipient is not entitled to receive the whole or any part of the amount paid, whether because of a false statement in a claim or otherwise, the amount or that part of the amount may be recovered by the Electoral Commission as a debt in any court of competent jurisdiction.
If the Electoral Commission is unable to finalise a claim for payment lodged on behalf of a party within 14 days, the Electoral Commission is required to make a preliminary payment within that period of 14 days.
The preliminary payment is to be of an amount equal to 70 per cent of the total amount estimated by the Electoral Commission to be payable to the party (other than under section 67), reduced by the amount of any advance payments made for the election concerned.
In making an estimate under this section, the Electoral Commission may, but need not, rely on information contained in the claim lodged by the party.
If a party receives a preliminary payment in excess of the amount (if any) to which it becomes entitled under a claim for payment, the amount of the excess must be repaid to the Electoral Commission within 60 days after the Electoral Commission notifies the party.
The amount of any such excess may be recovered by the Electoral Commission as a debt in any court of competent jurisdiction.
A party or candidate is not eligible for any payment (other than advance payments) under this Part in respect of a general election while any failure to lodge a requisite declaration (or annual financial statement) under Part 6 for a past period continues in respect of the party or candidate (or of any group of which the candidate is a member).
If the Electoral Commission is authorised under section 96J to recover from a party or candidate (or from the official agent of the party or candidate) an amount relating to the unlawful acceptance of a political donation or other amount, the Electoral Commission may deduct the amount from any payment (other than an advance payment) under this Part.
If a candidate dies and would, but for his or her death, have been entitled to a payment under this Part, the Electoral Commission may make the payment to the candidate’s legal personal representative or otherwise in accordance with section 68.
(Repealed)
The Electoral Commission may deduct from any payment due under this Part in respect of a party or candidate all or any overpayment or excess amount that the Electoral Commission is authorised by this Part to recover as a debt from the party or candidate.
If there is an alteration in the composition of a group at a periodic Council election and the Electoral Commission is satisfied that the identity of the group is substantially unaltered, payments may be made under this Part as if its composition had not altered.
A reference in this Part to the official agent of a candidate or to the campaign account of a candidate is (if a candidate at a periodic Council election) a reference to the official agent or campaign account of the group.
(Repealed)
A claim lodged with the Electoral Commission for a payment under this Part, together with any documents relating to the assessment of the claim by the Electoral Commission, or a copy thereof, must be retained by the Electoral Commission for at least 6 years after the polling day for the election to which it or they relate. Any such claim and documents, or a copy thereof, must be available for public inspection during ordinary office hours.
The Electoral Commission may, on application made to it and on payment of a reasonable fee to be determined from time to time by the Electoral Commission, provide copies of or extracts from any claim or documents referred to in subsection (1).
A person who, in any claim lodged with the Electoral Commission for a payment under this Part, makes a statement that is false or misleading in a material particular, knowing it to be false or not reasonably believing it to be true, is guilty of an offence.
A candidate who, in relation to any matter to be included in a claim for a payment under this Part, gives or withholds giving information to the official agent of the candidate knowing that it will result in the making of a false or misleading claim by the agent is guilty of an offence.
Maximum penalty: 400 penalty units or imprisonment for 2 years, or both.
(Repealed)
This Part applies in relation to:
(a) State elections and elected members of Parliament, and
(b) local government elections and elected members of councils (other than Division 2B).
The application of this Part in relation to the 2015 State general election is modified by Part 7A.
Political donations and electoral expenditure are required to be disclosed in connection with both State and local government elections and members. The cap on political donations applies to both State and local government elections and members, but the cap on electoral communication expenditure and public funding of election campaigns only apply to State elections and members.
In this Act:
A disposition of property includes any transaction that diminishes the value of a person’s own property and increases the value of the property of another person. Property includes money.
(a) an incorporated or unincorporated body, or
(b) the trustee of a trust.
An individual who, or a group of individuals which, accepts a gift for use solely or substantially for a purpose related to the proposed candidacy of the individual or individuals at a future election is, for the purposes of this Part, taken to be a candidate or group when accepting the gift.
Section 96A (2) makes it unlawful for any such political donations to be accepted unless the individual or group is registered as a candidate or group under this Act.
An individual who, or a group of individuals which, makes a payment for electoral expenditure for the election of the individual or individuals at a future election is, for the purposes of this Part, taken to be a candidate or group when making the payment. The guidelines of the Electoral Commission may exclude minor payments from the operation of this subsection.
Section 96A (5A) makes it unlawful for any such electoral expenditure to be incurred unless the individual or group is registered as a candidate or group under this Act.
For the purposes of this Part:
(a) a person who is a candidate in an election, or
(b) a group of candidates in an election,
is taken to remain a candidate or group for 30 days after the polling day for the election.
A disclosure is still required to be made by candidates and groups after they cease to be candidates or groups following the election if they were a candidate or group during any part of the relevant disclosure period for the disclosure—see section 88 (4).
Subsection (3) does not apply to a candidate at a time when the candidate is an elected member.
For the purposes of this Act:
(a) the amount of a donation or expenditure consisting of a disposition of property other than money is taken to be the amount equal to the value of the property disposed of, and
(b) the value of property disposed of or the value of a gift may, if the Electoral Commission so requires, be determined by valuers appointed or approved by the Electoral Commission in accordance with the regulations.
The regulations may make provision for requiring agents to obtain valuations from a valuer approved by the Electoral Commission of political donations that are not gifts of money (or enabling the Electoral Commission to obtain any such valuations—see section 117 (1) (a1)).
A reference in this Part to the name and address of a person making a donation or loan is:
(a) in the case of a donation or loan made by an unincorporated association—a reference to the name of the association and the names and addresses of the members of the executive committee (however described) of the association, and
(b) in the case of a donation or loan purportedly made out of a trust fund or out of the funds of a foundation—a reference to the names and addresses of the trustees of the fund or of the funds of the foundation and the title or other description of the trust fund or the name of the foundation.
For the purposes of this Part, corporations that are related to each other (as determined in accordance with the Corporations Act 2001 of the Commonwealth) are taken to be a single corporation.
For the purposes of this Part, an amount of electoral expenditure by a candidate for election to the Assembly includes, if the candidate is the endorsed candidate of a registered party, any amount of electoral expenditure that is:
(a) incurred by that party for the benefit of the candidate or for the benefit of the candidate and other candidates endorsed by the party at the election (whether or not as an agent for the candidate), and
(b) invoiced by that party to the candidate for payment (whether or not the candidate has a legal liability to pay to the party the amount invoiced).
For the purposes of this Act, a
(a) a gift made to or for the benefit of a party, or
(b) a gift made to or for the benefit of an elected member, or
(c) a gift made to or for the benefit of a candidate or a group of candidates, or
(d) a gift made to or for the benefit of an entity or other person (not being a party, elected member, group or candidate), the whole or part of which was used or is intended to be used by the entity or person:
(i) to enable the entity or person to make, directly or indirectly, a political donation or to incur electoral expenditure, or
(ii) to reimburse the entity or person for making, directly or indirectly, a political donation or incurring electoral expenditure.
An amount paid by a person as a contribution, entry fee or other payment to entitle that or any other person to participate in or otherwise obtain any benefit from a fund-raising venture or function (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.
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.
Unless details of any such subscription are required to be disclosed because it is a reportable political donation of or above $1,000, the total amount of subscriptions and other details are required to be disclosed under section 92 (4).
The following dispositions of property are taken to be a gift for the purposes of this section:
(a) a disposition of property to a NSW branch of a party from the federal branch of the party,
(b) a disposition of property to a NSW branch of a party from another State or Territory branch of the party,
(c) a disposition of property from a party to another associated party (whether associated because of common membership, coalition arrangements or otherwise).
Any such disposition will be a political donation that is required to be disclosed and subject to the caps on political donations under this Part. Any such donation paid into (or held against the assets of) a federal campaign account is not subject to the cap on donations—see section 95B (2).
Uncharged interest on a loan to an entity or other person is taken to be a gift to the person for the purposes of this section. Uncharged interest is the additional amount that would have been payable by the person if:
(a) the loan had been made on terms requiring the payment of interest at the generally prevailing interest rate for a loan of that kind, and
(b) any interest payable had not been waived, and
(c) any interest payments were not capitalised.
The following are not political donations:
(a) a gift to an individual that was made in a private capacity to the individual for his or her personal use and that the individual has not used, and does not intend to use, solely or substantially for a purpose related to an election or to his or her duties as an elected member,
(b) a payment under Part 5 (Public funding of election campaigns) or Part 6A (Political Education Fund).
Even though an election funding payment to a group or candidate is not a donation required to be disclosed, the amount is required to be paid into the separate campaign account that is established for donations to and electoral expenditure by the group or candidate—see section 77 (2A).
However, if any part of a gift referred to in subsection (4) (a) is subsequently used to incur electoral expenditure, that part of the gift becomes a political donation.
For the purposes of this Part, a political donation made to or for the benefit of a party is a political donation for a local government election if the donation is paid into (or held as an asset of) the local government campaign account of the party under section 96.
For the purposes of this Act, a
(a) in the case of disclosures under this Part by a party, elected member, group, candidate or third-party campaigner—a political donation of or exceeding $1,000 made to or for the benefit of the party, elected member, group, candidate or third-party campaigner, or
(b) in the case of disclosures under this Part by a major political donor—a political donation of or exceeding $1,000 made by the major political donor to or for the benefit of a party, elected member, group, candidate or third-party campaigner.
A political donation of less than an amount specified in subsection (1) made by an entity or other person is to be treated as a reportable political donation if that and other separate political donations made by that entity or other person to the same party, elected member, group, candidate, third-party campaigner or person within the same financial year (ending 30 June) would, if aggregated, constitute a reportable political donation under subsection (1).
A political donation of less than an amount specified in subsection (1) made by an entity or other person to a party is to be treated as a reportable political donation if that and other separate political donations made by that entity or other person to an associated party within the same financial year (ending 30 June) would, if aggregated, constitute a reportable political donation under subsection (1). This subsection does not apply in connection with disclosures of political donations by parties.
For the purposes of subsection (3), parties are associated parties if endorsed candidates of both parties were included in the same group in the last periodic Council election or are to be included in the same group in the next periodic Council election.
For the purposes of this Act,
For the purposes of this Act,
(a) expenditure on advertisements in radio, television, the Internet, cinemas, newspapers, billboards, posters, brochures, how-to-vote cards and other election material,
(b) expenditure on the production and distribution of election material,
(c) expenditure on the Internet, telecommunications, stationery and postage,
(d) expenditure incurred in employing staff engaged in election campaigns,
(e) expenditure incurred for office accommodation for any such staff and candidates (other than for the campaign headquarters of a party or for the electorate office of an elected member),
to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
The place and time at which a person may be required to produce a document, or to attend and answer questions, is to be a place and time nominated by the Electoral Commission that is reasonable in the circumstances.
A notice under this section that requires a person to produce a document may only require a person to produce existing documents that are in the person’s possession or that are within the person’s power to obtain lawfully.
The Electoral Commission may take copies of any documents provided under this section.
If the Electoral Commission has reason to believe that any documents provided under this section are evidence of an offence against this Act or the regulations, the Electoral Commission may retain the documents until proceedings for the offence have been heard and determined.
A person who, without reasonable excuse, fails to comply with a requirement made of the person under this section is guilty of an offence.
Maximum penalty: 200 penalty units.
A person who provides any document or information, or answers any question, in purported compliance with a requirement made under this section, knowing that the document, information or answer is false or misleading in a material particular, is guilty of an offence.
Maximum penalty: 400 penalty units or imprisonment for 2 years, or both.
A function conferred on the Electoral Commission by this section may be exercised by any person authorised by the Electoral Commission to exercise its functions under this section:
(a) who is employed in the Public Service, or
(b) who is not so employed but is subject to the control and direction of the Electoral Commission in relation to any function under this section.
The Electoral Commission may enter into a written agreement (a
A person affected by this Act includes a party, a group, an elected member, a candidate and a third-party campaigner.
A compliance agreement may specify the measures to be taken by the person affected by this Act to ensure that the person complies with this Act or remedies an apparent contravention of this Act.
A compliance agreement may be varied or terminated by further agreement between the parties.
The Supreme Court may, on application by the Electoral Commission, make a declaration that a person has contravened a compliance agreement, and make ancillary orders to enforce the compliance agreement.
This section does not affect proceedings for an offence in relation to a contravention of this Act.
Proceedings for an offence against this Act or the regulations may be taken before the Local Court or before the Supreme Court in its summary jurisdiction.
If proceedings in respect of an offence against this Act or the regulations are brought in the Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provision of this Act, 40 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.
If proceedings in respect of an offence against this Act or the regulations are brought in the Supreme Court in its summary jurisdiction, the Supreme Court may impose a penalty not exceeding the maximum penalty provided by this Act or the regulations in respect of the offence.
Proceedings in respect of an offence against this Act or the regulations may be commenced within 10 years after the offence was committed and no longer.
Proceedings in respect of an offence against this Act or the regulations may only be commenced with the consent of the Electoral Commission.
This section (other than subsection (5)) does not apply to proceedings for an offence against section 96HB.
An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
The Fines Act 1996 applies to a penalty notice issued under this section.
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
In this section,
A proceeding in respect of an offence against this Act alleged to be committed by a party that is unincorporated, or in respect of any amount recoverable from such a party under section 71, 71A, 77, 77A, 97I or 97J, may be instituted against an officer or officers of the party as a representative or representatives of the members of the party, and a proceeding so instituted shall be deemed to be a proceeding against all the persons who were members of the party at any relevant time.
For the purposes of enforcing any judgment or order given or made in a proceeding under this Act against a party that is unincorporated, process may be issued and executed against any property of the party, or any property in which the party has, or any members of the party have in their capacity as such members, a beneficial interest, whether vested in trustees or however otherwise held, as if the party were a corporation and the absolute owner of the property or interest, but no process shall be issued or executed against any other property of members, or against any property of officers, of the party.
A certificate signed by the Commissioner or a person authorised generally or specifically by the Commissioner to do so certifying:
(a) that a specified party, group or candidate was or was not registered in a specified register kept under this Act at a specified time or during a specified period,
(b) that a specified person was or was not registered as an agent in a specified register kept under this Act at a specified time or during a specified period, or
(c) that there was no person registered at a specified time or during a specified period as the agent of a specified party, group or candidate,
is admissible in any proceedings and shall be prima facie evidence of the matters so certified.
(Repealed)
Schedule 2 has effect.
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:
(a) requiring the making, keeping and auditing of records of political donations given or received, and electoral expenditure incurred, by parties, elected members, groups, candidates and other persons, and requiring and otherwise providing for the production, examination and copying of those records, and
(a1) requiring the agents of parties, elected members, groups or candidates to obtain valuations from a valuer approved by the Electoral Commission of political donations that are not gifts of money (or enabling the Electoral Commission to obtain any such valuations), and
(a2) compliance audits by or on behalf of the Electoral Commission in connection with disclosures under Part 6, and
(b) the exemption of any class or description of persons, organisations or bodies, or of acts, matters or things, from all or any of the provisions of this Act.
A regulation may impose a penalty not exceeding 20 penalty units for any contravention thereof.
A provision of a regulation may:
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
The Minister shall, before a regulation is at any time made under this Act, certify to the Governor that the regulation is not unfairly biased against or in favour of any particular parties, elected members, groups, candidates or other persons, bodies or organisations, but nothing in this subsection affects the validity of that or any other regulation.
In this Schedule:
Each of the adjustable amounts specified in a provision of Division 2A of Part 6 applies for the first financial year to which the provision applies and is to be adjusted for inflation for subsequent financial years as provided by this clause.
The adjustable amounts that are to apply for a subsequent financial year are to be determined by multiplying the adjustable amounts that applied for the previous financial year by the annual increase in the Consumer Price Index during that previous financial year.
The annual increase in the Consumer Price Index during a financial year is to be calculated as B/A where:
If B/A is less than 1 (as a result of deflation), B/A is deemed to be 1.
Before the start of each financial year after the first financial year of the operation of this clause, the Electoral Commission is to publish notice on the NSW legislation website and its website of the amount of each adjustable amount for the financial year (as adjusted under this Schedule).
See Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice.
Each of the adjustable amounts specified in a provision of Division 2B of Part 6 applies for the first election period that is current when the provision commences and is then to be adjusted for inflation for subsequent election periods as provided by this clause.
An
The adjustable amounts that are to apply for a subsequent election period are to be determined by multiplying the adjustable amounts that applied for the previous election period by the increase in the Consumer Price Index during that previous election period.
The annual increase in the Consumer Price Index during an election period is to be calculated as B/A where:
If B/A is less than 1 (as a result of deflation), B/A is deemed to be 1.
Before the start of each election period after the election period that is current when this clause commences, the Electoral Commission is to publish notice on the NSW legislation website and its website of the amount of each adjustable amount for the election period that results from an adjustment under this clause.
See Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice.
Each of the adjustable amounts specified in a provision of Division 2 of Part 6A applies for the year 2012 and is to be adjusted for inflation for subsequent calendar years as provided by this clause.
Each of the adjustable amounts specified in a provision of Division 3 of Part 6A applies for the first calendar year to which the provision applies and is to be adjusted for inflation for subsequent calendar years as provided by this clause.
The adjustable amounts that are to apply for a subsequent calendar year are to be determined by multiplying the adjustable amounts that applied for the previous calendar year by the annual increase in the Consumer Price Index during that previous calendar year.
The annual increase in the Consumer Price Index during a calendar year is to be calculated as B/A where:
If B/A is less than 1 (as a result of deflation), B/A is deemed to be 1.
Before the start of each calendar year after the first calendar year of the operation of this clause, the Electoral Commission is to publish notice on the NSW legislation website and on its website of the amount of each adjustable amount for the calendar year (as adjusted under this Schedule).
See Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice.
If the determination of an adjustable amount for a year or election period under this Schedule results in an amount that is not a whole number multiple of $100, the amount calculated is to be rounded up to the nearest whole number multiple of $100 and that amount as so rounded is the adjustable amount for that year or election period.
In the case of an adjustment of the amount of 56 cents specified in section 97I (4) of this Act, the amount is to be rounded up to the nearest whole number multiple of $0.01 if the determination results in an amount that is not a whole number multiple of $0.01.
(Section 116)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any Act that amends this Act.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The regulations under this clause have effect despite anything to the contrary in this Schedule.
(Repealed)
Section 87 as amended by the Election Funding (Amendment) Act 1987 applies to and in respect of declarations of political contributions required to be made after the commencement of that Act.
The Register of Parties kept as from the polling day for the general election held in 1984 shall be the Register of Parties required to be kept under this Act after the commencement of the Election Funding (Amendment) Act 1987.
The amendments made to sections 28 and 29 by the Election Funding (Amendment) Act 1987 do not apply to the registration of a party effected, or an application to register a party made, before the period of 60 days before the commencement of that Act.
In this clause,
The amendments apply to elections held after the date of assent to the Election Funding (Amendment) Act 1991.
This Act as in force before the date of assent to that Act continues to apply to elections held before that date.
However, if the date of assent to that Act is later than the day of issue of the writ or writs for the next election held after that day, the amendments do not apply to that election and this Act as in force before the date of assent to that Act applies to it.
This clause has effect subject to clause 8.
The amendment made to section 69 by the Election Funding (Amendment) Act 1991 does not apply to advance payments calculated by reference to any previous general election held before the date of assent to that Act.
Section 69 as in force before the date of assent to the Election Funding (Amendment) Act 1991 continues to apply to advance payments calculated by reference to any such previous general election.
In this Part,
The amendment made by Schedule 1 (5) to the amending Act does not affect the disclosure period for a party or candidate that has started before, but which finishes after, the commencement of that amendment.
The amendments made by Schedule 1 (6), (7) (a), (9) (a) and (b), (11), (12) and (16) to the amending Act do not apply to contributions received and expenditure incurred before the commencement of those amendments.
The amendments made by Schedule 1 (7) (b) and (10) (c) to the amending Act do not apply to contributions or payments made before the commencement of those amendments.
The amendments made by Schedule 1 (7) (d)–(g) to the amending Act apply to and in respect of declarations of political contributions required to be made after the commencement of those amendments.
The amendment made by Schedule 1 (7) (c) to the amending Act does not apply to contributions or payments made before the commencement of that amendment.
The amendments made by Schedule 1 (7) (h) and (10) (b) to the amending Act apply to subscriptions paid before the commencement of the amendments in respect of any current disclosure period.
The amendment made by Schedule 1 (8) to the amending Act does not apply to gifts received before the commencement of the amendment.
In this Part:
(a) in relation to a party registered under the Parliamentary Electorates and Elections Act 1912 and in relation to State elections—23 April 2007, or
(b) in relation to a party registered under the Local Government Act 1993 and in relation to local government elections—the date that is 30 days after the election date for the last ordinary council election.
For the purposes of Part 6 of this Act, the first relevant disclosure period in relation to:
(a) parties, or
(b) elected members, or
(c) groups or candidates,
is the period commencing on the day after the last disclosure date and ending on 30 June 2008.
The disclosures for that first relevant disclosure period are to be made, subject to the regulations, within 8 weeks after the end of that period (ie before 26 August 2008). Section 95 (2) requires the Authority to publish the declaration of disclosures for that first relevant disclosure period on the website of the Authority as soon as practicable after that date. Candidates required to make disclosures include persons who have accepted political donations for the 2008 local government elections even if they have not yet nominated for election or registered as a candidate (see section 84 (2)).
For the purposes of Part 6 of this Act, the first relevant disclosure period (except where clause 17 applies) is the 6-month period ending on 31 December 2008, and including the period commencing on the day after the last disclosure date and ending at the beginning of that 6-month period.
The requirements of the following provisions do not have effect until 1 August 2008:
(a) section 96A (Requirements for political donations to, and electoral expenditure by, elected member, group or candidate),
(b) section 96B (Campaign accounts of elected members, groups or candidates),
(c) section 96C (Person accepting reportable political donations to record details),
(d) Division 4 (Prohibition of certain political donations).
After the date those provisions have effect in relation to a party, elected member, candidate or group, section 96A extends to the use of political donations made before that date to incur electoral expenditure or reimbursing a person for incurring electoral expenditure after that date.
Subclause (2) will operate to require political donations made but not spent before the relevant date for the establishment of campaign accounts to be paid into the relevant campaign account if the money is to be spent on electoral expenditure.
The Authority may, if satisfied there is good cause to do so, waive compliance with those provisions, in any particular case or class of cases, in relation to matters arising during the period ending on the date that is 30 days after the election date for the ordinary council election in 2008. Any such waiver may be given before or after the date on which the provision is required to be complied with, and may be given subject to any conditions specified by the Authority.
(Repealed)
The amendment to section 91 (5) of this Act made by the Election Funding, Expenditure and Disclosures Further Amendment Act 2012 extends to a declaration containing no disclosures for the relevant disclosure period ending on 30 June 2012.
The time required by Part 6 of this Act for lodging such a declaration is taken to be the day that is 28 days after the commencement of the amendment to section 91 (5) of this Act.
In this Part,
The amendments made to sections 97E and 97F by the amending Act are taken to have effect in respect of the 2012 calendar year.
The Authority may, on application by a party or elected member, redetermine any payment that has been made to the party or elected member under Division 2 of Part 6A, or any claim for payment under that Division, in respect of the 2012 calendar year that was determined under section 97E or 97F as in force before its amendment by the amending Act.
If the amount of any payment for which the party or elected member was eligible would have been more if the amendments made to sections 97E and 97F by the amending Act had been in force at the time the payment or claim was made, the Authority is to redetermine the amount to which the party or elected member is eligible under those sections as so amended.
Sections 97K–97M apply to an application for redetermination of a payment or claim under this clause and the payment of an additional amount under this clause in the same way as they apply to a claim for payment under Part 6A and a payment from the Administration Fund under that Part.
Any amount that is required to be paid to a party or elected member on a redetermination of a payment or claim under this clause is to be paid within 6 weeks after the Authority receives the application for redetermination.
Section 97J (5) (as inserted by the amending Act):
(a) applies to a payment for which a claim is made after the commencement of that subsection, and
(b) applies to a payment in respect of the 2012 calendar year that has not been made but for which a claim (including the required supporting documentation and information) was made before that commencement as if the claim had been received by the Authority on that commencement.
The adjustable amounts for 2013 inserted in the Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice by the amendment made by Schedule 2 to the amending Act are taken to have been determined and published by the Authority in accordance with Schedule 1 to this Act.
This Act is taken to operate, after the commencement of the Election Funding, Expenditure and Disclosures Consequential Amendment Act 2014, as if the amendments made by that Act had commenced on 18 December 2013 (being the date of the High Court’s decision in Unions NSW Ors v State of New South Wales[2013] HCA 58).
Any act, matter or thing that was required by or under this Act to have been done after 18 December 2013 and before the commencement of the Election Funding, Expenditure and Disclosures Consequential Amendment Act 2014 (if that Act had commenced on 18 December 2013) is required to be done within 28 days after the commencement of that Act or such longer period as the Electoral Commissioner may allow.
Any political donation that was made by a corporation after the commencement of the Election Funding, Expenditure and Disclosures Amendment Act 2012 (being 9 March 2012) that has not been disclosed in a declaration lodged with the Authority before 18 December 2013 is required to be disclosed in a declaration lodged after the commencement of the Election Funding, Expenditure and Disclosures Consequential Amendment Act 2014 even though the donation was made before the relevant disclosure period to which the declaration relates.
The amendment made to section 97E (3) (a)–(d) by the Election Funding, Expenditure and Disclosures Amendment Act 2014 applies to payments from the Administration Fund for the 2014 calendar year and subsequent calendar years. The amount inserted by that Act is subject to adjustment for inflation under Schedule 1 for subsequent calendar years.
The amendments made to section 97I (4) and (5) by the Election Funding, Expenditure and Disclosures Amendment Act 2014 apply to payments from the Policy Development Fund for the 2014 calendar year and subsequent calendar years. The amounts inserted by that Act are subject to adjustment for inflation under Schedule 1 for subsequent calendar years.
The extension from 3 years to 10 years of the period within which summary proceedings for offences against this Act or the regulations may be commenced (as a consequence of the amendment made to section 111 (4) by the Election Funding, Expenditure and Disclosures Amendment Act 2014) applies to offences committed after the commencement of that Act.
The Election Funding Authority is abolished.
Each person who holds office as a member (or alternate member) of the Election Funding Authority ceases to hold office as such a member.
A person who ceases to hold office as a member (or alternate member) of the Election Funding Authority is not entitled to any remuneration or compensation because of the loss of that office.
The assets, rights and liabilities (if any) of the Election Funding Authority become the assets, rights and liabilities of the Electoral Commission.
The Electoral Commission is taken to be a continuation of the Election Funding Authority.
Unless the context otherwise requires, a reference in any other Act or in any instrument made under another Act to the Election Funding Authority is to be read as a reference to the Electoral Commission.
In this clause:
Any delegation of a function under section 115 and in force immediately before the repeal of that section by the Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 is taken to be a delegation of the function by the Electoral Commission to the Commissioner.
Subject to this Part and the regulations, anything done under or for the purposes of a provision of this Act by the Election Funding Authority before its abolition is, to the extent that the thing has effect immediately before its abolition, taken to have been done by the Electoral Commission.
The amendments made to this Act by the Local Government and Elections Legislation Amendment (Integrity) Act 2016 do not apply in relation to a local government by-election for a council that occurs before the next general election for the council after the commencement of that Act.
Schedule 1 applies to an adjustable amount inserted into section 95A by the Local Government and Elections Legislation Amendment (Integrity) Act 2016 as if that amount had been inserted in that section on the enactment of that section.
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