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Legislative Assembly for the ACT: 2000 Week 9 Hansard (7 September) . . Page.. 3118 ..

MS TUCKER (12.45 am): I am sorry but I forgot to speak to my first amendment which, although not quite consequential, addresses a related issue. Under section 221A of the Electoral Act there is a requirement for donors to parties or Independent MLAs to submit annual returns to the Electoral Commissioner if they make gifts over a certain amount to these people in any one financial year. Presumably, the Electoral Commissioner can then compare the returns of parties, MLAs and donors to make sure that all donations are accounted for. However, the definition of a gift in this section is inadequate.

In simple terms, the criteria in this section for determining whether a gift to an Independent MLA does not have to be declared are, firstly, the gift is made in a private capacity; secondly, the gift is for the MLA's personal use; and, thirdly, the gift is not used or will not be used "for a purpose related to an election". The first two points are fine but the last point provides a great loophole for people giving gifts to Independent MLAs to avoid declaring them.

For a start, these are annual returns and for two out of three years there will be no ACT election in that year. A person giving a donation in non-election years can therefore quite legitimately claim that they do not know whether the MLA will use this money for an election because they cannot foretell the future. This section assumes that the donor will know in advance how the MLA will use the donation, which would be impossible if the donation is given up to three years before the next election. In fact, if a donor gave an MLA a genuinely personal donation and did not declare it but the MLA later decided to use that donation for a purpose related to an election, the donor would actually be liable for an offence, even though they had no say in how the MLA used the donation, and that does not seem fair.

Like the previous amendment, the critical issue should be the motivation of the donor in giving the gift and whether this is for private or political purposes, not how the gift is used by the MLA. Even if a donation is not given specifically for an election campaign, a donation given to an MLA in that capacity can still create a potential obligation on the MLA to return the favour and thus should be declared. My amendment therefore deletes the reference to gifts being used for election purposes.

Mr Humphries made a complaint about timing. We have been working on these amendments ever since we got your legislation not so very long ago, so I do not think that was a very fair criticism.

MR HUMPHRIES (Treasurer, Attorney-General and Minister for Justice and Community Safety) (12.48 am): Mr Speaker, I think Ms Tucker's arguments on her amendment No 1 are quite persuasive, but we are still going to vote no.

Amendment negatived.

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