Guidelines under the Electoral Funding Act 2018

Voter intention surveys

Where: 

(i) a voter intention survey is carried out on behalf of a candidate, and 
(ii) no charge is made for the survey, 

the value of the survey should be declared as a political donation, except to the extent that the value arises from the provision of volunteer labour directly to the candidate or any party of which the candidate is a member.

Section 5(1)

25/07/18

Use of a vehicle 

If a candidate uses a vehicle not owned by him or her during an election campaign, the value of the use of the vehicle should be shown as a political donation, unless a payment is made by the candidate for the use of the vehicle which adequately reflects the commercial value of the use of the vehicle.

Section 5(1)

25/07/18

Discounts, promotions, and rebates

In some circumstances a commercial discount, sales promotion or rebate made to or for the benefit of a political entity could be a political donation, and require disclosure in a declaration.

Where a discount, promotion or rebate is a political donation, all legislative provisions with respect to political donations apply.

Section 5

25/07/18

Advertising space

In some circumstances, if a political entity owns or operates a publication and sells advertising space in that publication, and an advertiser pays more than the lowest usual market price for a piece of advertising space that the advertiser buys, the excess of the amount paid over the lowest usual market price of that piece of advertising space may constitute a political donation.

Section 5

25/07/18

Quantifying expenditure on advertising shared between multiple recipients

This guideline outlines the recommended method for quantifying the value of an indirect campaign contribution by way of electoral expenditure for advertising, as defined in section 47(1)(b) and (c) of the Electoral Funding Act 2018 ("the Act"), that is shared between more than one party, elected member, candidate or group of candidates ("recipients").

The electoral expenditure incurred, or to be incurred by each recipient, is equal to the amount paid, or to be paid, by each recipient for the advertising. The amount of electoral expenditure incurred by a recipient is to be disclosed to the NSW Electoral Commission in the recipient's annual declaration of disclosures as electoral expenditure, and any amounts paid on behalf of another recipient are to be disclosed as political donations.

An indirect campaign contribution includes the following situation where electoral expenditure for advertising is incurred, or is to be incurred, by more than one recipient, and the advertising is authorised by those recipients:

• an indirect campaign contribution has been made to a recipient if the electoral expenditure incurred, or to be incurred by the recipient, is less than the recipient's share of the total cost of the advertising as divided equally between all recipients; and

• the person who made the indirect campaign contribution is to disclose the value of the indirect campaign contribution as a political donation made to the recipient; and

• if the recipient has accepted the indirect campaign contribution the recipient must disclose the indirect campaign contribution as a political donation received.

The value of the indirect campaign contribution/s made by that person in a financial year cannot exceed the adjustable amounts specified in sections 47(3)(c) and (d) of the Act. The indirect campaign contribution/s cannot be accepted if the value of the contribution/s exceed the adjustable amounts specified in sections 47(3)(c) and (d) of the Act.

If a party, elected member, group or candidate benefiting from an advertisement has not authorised the advertisement, that party, elected member, group or candidate has not incurred electoral expenditure or accepted an indirect campaign contribution.

25/07/18

Volunteer labour

This guideline applies to the provision of volunteer labour and the ancillary use of vehicles or equipment of volunteers for a party, elected member, candidate or group of candidates benefit.

An indirect campaign contribution, as defined by section 47 of the Act, does not include the provision of volunteer labour or the ancillary use of vehicles or equipment of volunteers for a party, elected member, candidate or group of candidates for an election campaign. Accordingly, if a volunteer provides labour, vehicles or other equipment that are necessary for the election campaign of a party, elected member, candidate or group of candidates no indirect campaign contribution has been made by the volunteer.

A volunteer is a person who provides labour to a party, elected member, candidate or group of candidates for no payment, or payment less than the market value.

A volunteer does not include a person whose labour consists of providing products or services that the person supplies as a function of his/her profession or trade, or would otherwise be paid for in the ordinary course of their employment. For example, if a person is a sign writer and provides free sign writing services to a party for inadequate or no payment, the person is not a volunteer. The provision of those services is a political donation.

The ancillary use of a vehicle or equipment of volunteers may include but is not limited to:

• the use of a vehicle to deliver or distribute electoral material

• the use of a vehicle to transport staff or volunteers engaged in an election campaign

• the use of a vehicle to attend fundraising ventures or functions for an election campaign

• the use of a vehicle to meet with other candidates or party representatives for an election campaign

• the use of a vehicle to meet with constituents as part of an election campaign

• the use of a vehicle to meet with suppliers of election material, advertising or other services, and

• ·the use of computers, telephones, photocopiers, printers, fax machines and other office equipment during an election campaign.

Uncharged interest on a loan

A political donation includes any uncharged interest on a loan. Uncharged interest is the additional amount that would have been payable 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.

As a guide the generally prevailing interest rate for a loan of that kind is as follows:

1. From 1 January 2013 to 31 December 2013, the rate is based on the cash rate of the Reserve Bank which was set at 5% per annum.

2. From 1 January 2014 to 31 December 2014, the rate is based on the cash rate of the Reserve Bank which was set at 5% per annum.

3. From 1 January 2015 to 31 December 2015, the rate is 7.1% p.a. for secured loans and 14.1% p.a. for unsecured loans.

4. From 1 January 2016, the rate is 6.6% p.a. for secured loans and 14.1% p.a. for unsecured loans, to be reviewed periodically.

5. From 1 July 2018, the rate is 6.45% p.a. for secured loans and 12.7% p.a. for unsecured loans, to be reviewed periodically.

6. From 1 June 2021, the rate is 5.03% p.a. for secured loans and 12.73% p.a. for unsecured loans, to be reviewed periodically.

A 'secured loan' would generally be secured by a mortgage or charge of real estate the value of which, after deducting the amount of any other mortgages or charges over the property, exceeds 125% of the amount of the loan.

Section 5(5)

25/07/18

Payments from other party branches and parties

Under section 5 of the Electoral Funding Act 2018, all payments made to a NSW branch of a party from:

• the federal branch of the party, or

• from another state or territory branch of the party, or

• from another party

must be treated as gifts and are subject to the rules relating to political donations.

Any such payments must be disclosed to the NSW Electoral Commission as political donations, therefore, and must be within the relevant annual caps.

Such payments may include the reimbursement of administrative expenses incurred by a NSW branch of a party for the benefit of other branches of that party outside NSW. They may also include repayments of loans made by a NSW party to a branch outside NSW or the proceeds of loans from a branch outside NSW to a NSW party. To ensure strict compliance with the Act, NSW branches of parties should not agree to incur expenditure on behalf of, or loan money to, branches of the party outside NSW where the reimbursement or repayments required under the agreement would exceed the annual donation caps in NSW. If any such arrangements are already in place at the time this Guideline was issued, NSW branches of parties should consider ending those arrangements and should disclose any payments already received under them as donations, if they have not done so already.

The NSW Electoral Commission may take enforcement action in relation to past payments where it considers it is appropriate to do in the circumstances of the case, but is not likely to do so where a past payment has been disclosed in accordance with the Act and also meets the following conditions:

• The past payment has been made solely to reimburse the NSW branch for administrative expenditure it has incurred on behalf of the federal and/or other state or territory branches of the same party, and

• The NSW branch can demonstrate to the satisfaction of the NSW Electoral Commission:

  • there was an agreement for this reimbursement to occur,

  • the relevant vouching for the expenditure incurred can be provided, and

  • details of the apportionment of the expenditure between the branches can be provided (where applicable).

Section 5

26/10/22

Approved forms

Forms approved by the NSW Electoral Commission pursuant to the Electoral Funding Act 2018 must be used by political parties, elected members, candidates, groups, third-party campaigners, associated entities and political donors. These forms include:

• declarations of disclosures under Part 3 of the Act

• notices of consent, or withdrawal of consent, for a party agent to be the person responsible under Part 3 of the Act

• claims for payment under Part 4 of the Act in relation to the Election Campaigns Fund

• claims for quarterly advance payment under Part 5 of the Act in relation to the Administration Fund

• notices listing the senior office holders of a party under Part 6 of the Act

• applications for registration under Part 7 of the Act in relation to the registration of electoral participants

• notices under Part 7 of the Act in relation to the registration of electoral participants.

Part 3, Division 2

Division 8

Part 4, Division 3

Part 5, Division 2

Part 6, Division 2

Part 7, Division 2

Division 3

Division 4

Division 5

Division 6

25/07/18

Inclusion of GST component of a donation or expenditure

The disclosure of the amount of a political donation or amount of electoral expenditure in a declaration of disclosures made in accordance with sections 15 and 16 of the Election Funding Act 2018 is to include the disclosure of the GST component of the donation or expenditure.

Section 19

Section 20

25/07/18

Extension of due date for making disclosures

a) This guideline outlines the information that should be included in a request for an extension of time to lodge a disclosure, and the factors that will be considered by the NSW Electoral Commission (Electoral Commission) when making a decision whether to grant an extension.

b) Section 60 of the Act provides that where a person is required to submit a disclosure but is unable to meet the due date, the person may request an extension for submitting the disclosure. The request must be made by the person responsible to lodge the disclosure on or before the original due date. The Electoral Commission may extend the due date if it is satisfied that there is good cause to do so. The due date cannot be extended or further extended by more than 8 weeks in total from the original due date. 

c) As a condition of the extension, the person may be required to submit a partial disclosure (and accompanying material) that the person is in a position to make at that time with a final, complete disclosure to be submitted by the extended due date.

d) Extensions of time may be granted for good cause when a person is unable to meet a due date. In order to demonstrate that there is good cause justifying the extension, requests to the Electoral Commission for an extension of time must include the following information:

• The name of the political participant for whom the extension request is made

• Detailed reason(s) why the extension is required. These would be the circumstances which make the person unable to meet the due date such as unforeseen situations

• The period of time during which the person was or will be affected by the circumstances preventing them from meeting the due date

• The specific disclosure to which the extension request relates (e.g., a Half-yearly political donation disclosure for 1 July to 31 December 2022 for a Candidate). If a person is requesting an extension for multiple disclosures (e.g., as a Candidate, Elected Member, and Lead Candidate of a group) each/all disclosures to which the request relates must be included.

e) The requested extended due date that is within 8 weeks of the original due date.

f) Examples of reasons that would likely not justify the granting of an extension include: 

• Requests that do not include any reason why an extension is required, or simply state that more time is required

• Workload burden associated with being responsible for submitting multiple disclosures or on behalf of multiple political participants

• Additional demands on staff or participants that are due to elections (whether for a Federal election, or local councils or a State election)

• Foreseeable delays in collating disclosure information and supporting documents.

g) Further examples of reasons that have not satisfied the “good cause” assessment are provided in the Disclosure Policy and Procedures available on the NSW Electoral Commission website.

h) A decision whether to grant an extension will also take into account whether extensions have been granted to the same person in the past for the same or similar reasons; and whether the participant receives public funding which is designed to support the capacity of participants to meet requirements associated with administration and management activities and operations. These factors militate against an extension of time being for good cause.

i) Each request for an extension will be assessed on a case-by-case basis, taking into account the objects of the Act. The Electoral Commission may ask for evidence to be provided in support of a request, if it was not already provided with the original request. It is an offence for a person to provide information to the Electoral Commission in relation to any request that the person knows to be false or misleading. 

j) The new due date requested may be granted or, where it is determined that the requested length of time is excessive, a shorter extension of time may be granted.

8/02/23

Approved forms

Forms approved by the NSW Electoral Commission pursuant to the Electoral Funding Act 2018 must be used by political parties, elected members, candidates, groups, third-party campaigners, associated entities and political donors. These forms include:

• declarations of disclosures under Part 3 of the Act

• notices of consent, or withdrawal of consent, for a party agent to be the person responsible under Part 3 of the Act

• claims for payment under Part 4 of the Act in relation to the Election Campaigns Fund

• claims for quarterly advance payment under Part 5 of the Act in relation to the Administration Fund

• notices listing the senior office holders of a party under Part 6 of the Act

• applications for registration under Part 7 of the Act in relation to the registration of electoral participants

• notices under Part 7 of the Act in relation to the registration of electoral participants.

Part 3, Division 2

Division 8

Part 4, Division 3

Part 5, Division 2

Part 6, Division 2

Part 7, Division 2

Division 3

Division 4

Division 5

Division 6

25/07/18

public-funding-guideline-33

Staff remuneration (Administration Fund or New Parties Fund)

With respect to administrative or policy development expenditure of an eligible party or elected member, the rate of remuneration for staff (being the proportion of remuneration that relates to the time spent engaged in administrative or policy development activities outlined in sections 84(1)(a)(i-vi) and 85(1)(a)(i-iv) of the Electoral Funding Act 2018 respectively) may only be included in a claim from the Administrative or New Parties Fund where the remuneration is reasonable in all the circumstances, including but not limited to, the qualifications and skills necessary to the relevant activities.

Section 84

Section 85

25/07/18

Remuneration of a driver for a Member of Parliament (Administration Fund)

With respect to administrative expenditure of an eligible party or elected member, the remuneration of a driver of a Member of Parliament (being the proportion of the remuneration that relates to the time spent engaged in administrative activities outlined in section 84(1)(a)(i-vi) of the Electoral Funding Act 2018) is not administrative expenditure for the purposes of making a claim from the Administration Fund.

Section 84

25/07/18

Quantifying administrative or policy development expenditure on travel
 
The recommended method for quantifying expenditure on travel for the purposes of sections 84(1)(a)(viii) and 85(1)(a)(vi) of the Electoral Funding Act 2018, for administrative or policy development expenditure of an eligible party or elected member, is on the basis of business kilometres travelled. Business kilometres are kilometres travelled using a vehicle acquired by the party or elected member for the purposes of the policy development, administration or operation of the party or elected member (as the case requires).

A party or elected member may make use of a log book to establish and show the number of business kilometres travelled.

A party or elected member may utilise the cents per kilometre method as set out by the Australian Tax Office in their D1 Work-related car expenses policy.

Policy to be reviewed on a calendar year basis.

Section 84

Section 85

25/07/18

guideline-1212

GST component in a public funding 

Where a claim for payment is made from the Election Campaigns Fund (in accordance with Division 3 of Part 4 of the Election Funding Act 2018), the Administration Fund or the New Parties Fund (in accordance with Division 4 of Part 5 of the Election Funding Act 2018), the GST component of expenditure is only to be included in the claim if the claimant considers it is not entitled to a tax credit for these expenditures.

The Electoral Commission will only reimburse the GST component of expenditure where the claimant is not entitled to a tax credit.

Where a tax credit is received from the ATO for expenditure that was paid out of the State Campaign Account of a party, the tax credit may be deposited into that account.

Section 84

Section 85

25/07/18

Defining “actual” expenditure
For the purposes of the Election Campaigns Fund, ‘actual electoral expenditure’ means electoral expenditure for which the candidate or party has a legal liability to pay or has paid, including electoral expenditure incurred by a party for, and invoiced to, a candidate (as provided in section 9(9) of the Electoral Funding Act 2018).

For the purposes of the New Parties Fund, ‘actual policy development expenditure’ means policy development expenditure for which the party has a legal liability to pay or has paid.

For the purposes of the Administration Fund, ‘actual administrative expenditure’ means administrative expenditure for which the elected member or party has a legal liability to pay or has paid.

Part 4

Division 1

Division 2

Division 3

Part 5

Division 1

Division 2

Division 3

Division 4

11/12/19

Expenditure incurred in relation to a referendum

Where a referendum is being conducted concurrently with a general election, expenditure incurred by a candidate or party, in advising the electorate how to vote in the referendum will only be electoral expenditure that can be reimbursed from the Election Campaigns Fund if the claimant is not entitled to claim it from another source of funding made available for the referendum.

Section 64

25/07/18
(amended on 08/02/23)

Electoral expenditure that cannot be claimed

Expenditure incurred for the following purposes are not electoral expenditure that can be reimbursed from the Election Campaigns Fund:

1. Where a candidate suffers a loss of pay caused by his attendance at campaign activities, that loss of pay is not electoral expenditure.
2. Expenditure incurred for a celebration or social function after the close of the poll.
3. A deposit paid by a candidate when lodging his or her nomination for election.
4. Purchase of flowers and other gifts to office staff.
5. Parking fines imposed on candidates during their election campaign.
6. Amounts paid for annual subscription to newspapers or magazines.
7. Fees paid by a candidate to scrutineers for services at the count after polling day.
8. Non-promotional clothing purchased to be worn by  candidate in his or her campaign.
9. Candidates' personal services such as hairdressing expenses.
10. Payments made for child care.
11. Expenses incurred by a candidate or his/her campaign director in attending party meetings.

Section 64

25/07/18 
(amended on 08/02/23)

Quantifying electoral expenditure on travel

The recommended method for quantifying electoral expenditure on travel for candidates and their staff who use their own vehicle for electoral campaigning is based on business kilometres travelled for the purpose of disclosures and claims.

Business kilometres are kilometres travelled in a candidate's or staff member's own car in the course of electoral campaigning within a 10 week period that includes Election Day.

A candidate may make use of a log book to establish and show the number of business kilometres travelled.

A candidate may utilise the cents per kilometre method as set out by the Australian Tax Office in their D 1 Work-related car expenses policy.

Policy to be reviewed on a calendar year basis.

Section 7

25/07/18

Quantifying expenditure on advertising shared between multiple recipients

This guideline outlines the recommended method for quantifying the value of an indirect campaign contribution by way of electoral expenditure for advertising, as defined in section 47(1)(b) and (c) of the Electoral Funding Act 2018 ("the Act"), that is shared between more than one party, elected member, candidate or group of candidates ("recipients").

The electoral expenditure incurred, or to be incurred by each recipient, is equal to the amount paid, or to be paid, by each recipient for the advertising. The amount of electoral expenditure incurred by a recipient is to be disclosed to the NSW Electoral Commission in the recipient's annual declaration of disclosures as electoral expenditure, and any amounts paid on behalf of another recipient are to be disclosed as political donations.

An indirect campaign contribution includes the following situation where electoral expenditure for advertising is incurred, or is to be incurred, by more than one recipient, and the advertising is authorised by those recipients:

• an indirect campaign contribution has been made to a recipient if the electoral expenditure incurred, or to be incurred by the recipient, is less than the recipient's share of the total cost of the advertising as divided equally between all recipients; and

• the person who made the indirect campaign contribution is to disclose the value of the indirect campaign contribution as a political donation made to the recipient; and

• if the recipient has accepted the indirect campaign contribution the recipient must disclose the indirect campaign contribution as a political donation received.

The value of the indirect campaign contribution/s made by that person in a financial year cannot exceed the adjustable amounts specified in sections 47(3)(c) and (d) of the Act. The indirect campaign contribution/s cannot be accepted if the value of the contribution/s exceed the adjustable amounts specified in sections 47(3)(c) and (d) of the Act.

guideline20If a party, elected member, group or candidate benefiting from an advertisement has not authorised the advertisement, that party, elected member, group or candidate has not incurred electoral expenditure or accepted an indirect campaign contribution.

Section 47

25/07/18

Defining “dominant purpose”

The test for whether expenditure incurred by a third-party campaigner in NSW is “electoral expenditure” and subject to obligations under the Electoral Funding Act 2018, including registration with the NSW Electoral Commission and caps, depends on the “dominant purpose” of that expenditure. Only expenditure that is for the dominant purpose of influencing the voting at an election, or promoting or opposing a party or the election of a candidate or candidates, is subject to the electoral expenditure obligations under the Act, including registration as a third-party campaigner and being subject to a cap.

The Electoral Commission considers that in making an assessment of the dominant purpose of expenditure the following factors need to be considered:

• expenditure may be for the dominant purpose of influencing the voting at an election or promoting or opposing a party or the election of a candidate or candidates even if was incurred for more than one purpose

• the dominant purpose is the ruling, prevailing or most influential purpose: the one that is of greater importance than any other. Where two purposes are of equal weight, for example, neither is dominant 

• to be dominant, the purpose should be causative of the expenditure in question – that is, the expenditure would not have been made otherwise.

 The business records of the entity regarding the authorisation of the expenditure, as well as the broader circumstances in which the particular expenditure has been incurred, are relevant to any such assessment. A determination should be made by the entity on a case-by-case basis. 

The Electoral Commission also considers that the following characteristics of material and/or communications published or issued during a capped expenditure period for an election by an entity that is not a candidate, a party, an associated entity or an elected member may be taken to indicate that it is for the dominant purpose of influencing voting at an election or promoting or opposing a party or the election of a candidate or candidates.

The list below is non-exhaustive, but expenditure on material/communication with one or more of these characteristics should be considered to be electoral expenditure, even if the expenditure is also for other purposes:

• it contains the name or logo of a political party endorsing a candidate at the election

• it contains the name or image of a candidate contesting the election

• it refers to the election

• it contains voting directions or recommendations

• it is displayed, distributed, broadcast or otherwise communicated mostly in the weeks or days leading up to and including election day

• it is displayed or distributed mostly around voting centres

Where expenditure on material/communications is for the dominant purpose of influencing voting at the election, or of promoting or opposing a party or the election of a candidate or candidates, the whole of the expenditure incurred must be counted towards the cap, even if there are other purposes associated with the expenditure. 

Section 7(3)

26/10/22

Inclusion of GST component of a political donation or electoral expenditure

The applicable cap on political donations, as provided for in Division 3 of Part 3 of the Election Funding Act 2018, applies to the GST inclusive amount of a political donation.

The applicable cap on electoral expenditure incurred in the capped expenditure period, as provided for in Division 4 of Part 3 of the Election Funding Act 2018, applies to the GST inclusive amount of electoral expenditure.

Section 23

Section 29

Section 31

25/07/18

Minor payments ($50 or less)
 
With respect to payments made by a candidate, group or elected member for electoral expenditure for their own election or re-election, minor payments (being payments for items of electoral expenditure of $50 or less) not exceeding a total of $1,000 in any election period may be made external to that candidate's, group's, or elected member's campaign account (or the campaign account of the party where the party agent is responsible for payment of the elected member, candidate or group's electoral expenditure). Such payments must, however, be recorded in the petty cash book maintained in respect to the candidate, group or elected member or the accounting records of the party (where the party agent is responsible).

Section 38

Section 39

25/07/18

guideline-88