If someone gives money for a federal election campaign, do they have to disclose it under state laws too?

In Plain English

Generally, if you donate money or other benefits (like goods or services) to a political party, candidate, or other regulated entity for use in a federal election, you don't have to disclose that donation under state or territory electoral laws. This is true whether you are the one giving the money or the one receiving it. The key is that the money or benefit is specifically intended for use in federal electoral activities. There are some exceptions, for example, if the money is initially intended for federal purposes but is ultimately used for state or territory electoral purposes, then state laws may apply. Also, this doesn't override compulsory production provisions in state or territory laws, which means a regulator can still compel you to disclose information as part of an investigation.

Detailed Explanation

Section 314B of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018, as substituted by section 27 of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020, and section 302CA and 314B of the Commonwealth Electoral Act 1918 address the relationship between Commonwealth and State/Territory electoral laws regarding disclosure of amounts and benefits given for federal purposes.

Disclosure of Amounts and Benefits Given etc. for Federal Purposes:

  • General Rule: A person or entity is not required to disclose under State or Territory electoral law an amount of money (including a gift or loan) or the value of a non-monetary benefit if the person or entity expressly gives the amount or provides the benefit to, or for the benefit of, a regulated entity for federal purposes (s 314B(1) and (1A) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020). A "non-monetary benefit" is defined as a gift, or a good or service that is lent, that is not money (s 314B(8) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • Regulated Entity Receiving Money: A regulated entity is not required to disclose under State or Territory law an amount of money received if it is deposited into a federal account as soon as practicable and is only used for federal purposes or transferred to another federal account (s 314B(1B) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • Regulated Entity Receiving Other Benefits: A regulated entity is not required to disclose the value of a non-monetary benefit received unless the entity keeps or uses the benefit for purposes other than federal purposes (s 314B(2) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • Federal Purpose: The above subsections also apply if the amount or benefit is expressly given or provided for federal purposes (s 314B(4) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • Offering, Seeking and Giving Gifts: Despite any State or Territory electoral law, a person or entity may offer, seek or give a gift to, or for the benefit of, a regulated entity if the gift is expressly offered, sought or given for federal purposes (s 302CA of the Commonwealth Electoral Act 1918).
  • Receiving or Keeping Gifts: A regulated entity may receive a gift of money if the money is deposited into a federal account and is not transferred or withdrawn except to use it for federal purposes or to transfer it to another federal account. A regulated entity may keep a gift of money if the money is kept in a federal account and is not transferred or withdrawn except to use it for federal purposes or to transfer it to another federal account (s 302CA of the Commonwealth Electoral Act 1918).
  • Using Gifts: A regulated entity may use a gift of money for federal purposes if the gift has been continuously kept in a federal account since it was deposited in that account. A regulated entity may use a gift that is not money for federal purposes if the gift has been continuously kept for federal purposes since it was received (s 25 of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • No Requirement to Include Federal Information: If an amount, information, or value is not required to be disclosed under State or Territory law due to these provisions, it doesn't matter whether it would otherwise be included in a return under the Commonwealth law, and a total amount required to be disclosed under State or Territory law does not need to include this federal information (s 314B(7) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).
  • State or Territory Electoral Purpose: If an amount was used for State or Territory electoral purposes during the applicable State or Territory disclosure period, State or Territory electoral laws apply to the amount. A person who does not disclose, under a State or Territory electoral law, an amount used for a State or Territory electoral purpose before the end of that period may be liable to a penalty under the State or Territory electoral law (Note to s 314B(1) of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018).
  • Compulsory Production Provisions Excluded: Section 314B does not apply in relation to any compulsory production provision in a State or Territory electoral law (s 314B(10) of the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020).