A Farewell to Arms Part 2: Designing an effective Commonwealth expenditure cap regime

October 2022

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There are no limits on candidate, party, or third-party expenditure for Commonwealth elections. Expenditure cap regimes in New South Wales, Queensland the Australian Capital Territory have shown that expenditure caps are an efficient and achievable way of levelling the playing field.[1] They make elections more fair, competitive, and open; they also direct our elected representatives’ focus to their constituencies and portfolios, rather than to raising funds from donors with ulterior motives. Caps on third-party electoral expenditure, when designed appropriately, are an important way of preventing the undue and inordinate influence of monied interests on discourse, and ultimately, on public policy.

The Centre for Public Integrity recommends expenditure caps at the Commonwealth level according to the following thirteen principles:

1. A capped expenditure period commencing two years after previous polling day;
2. Caps on electoral expenditure for political parties proportional to the number of electoral divisions in which they endorse candidates;
3. A bargaining system between endorsed candidates and political parties over the applicable expenditure cap;

4. Aggregation of associated entity electoral expenditure with party expenditure – with associated entity defined narrowly;
5. Caps on electoral expenditure for independent candidates which are proportionally higher than those for endorsed candidates and parties to account for the positive externalities of general party advertising;
6. Moderate third-party expenditure caps with a requirement to register with the Australian Electoral Commission (AEC) when intending to, or having reached, a threshold level of electoral expenditure;
7. Capped in-electorate spending by third parties
8. A broader definition of electoral matter such that most third-party issues-based advertising campaigns are captured
9. An anti-circumvention offence to prevent candidates, parties, associated entities or third parties from acting in concert to circumvent their applicable cap;
10. A double-repayment penalty for negligently exceeding the cap, along with a punitive financial penalty and possible imprisonment for intentionally exceeding the cap;
11. Real time disclosure by parties, candidates, associated entities and third parties;
12. A mandatory statutory review of the expenditure cap regime after its first election cycle;
13. Increased resourcing and funding to the AEC to manage additional educative, enforcement and compliance duties.

The above recommendations can broadly be separated into five categories of:

1. When do caps apply?
2. To whom, and how, do the caps apply?
3. To what do they apply?
4. Anti-circumvention measures: offences and penalties; and
5. Administration, enforcement, and statutory review.

 

1. When do caps apply?

Caps should apply two years after the previous polling day.

Recommendation 1: A capped expenditure period commencing two years after previous polling day.

Unlike most state elections, Commonwealth elections are not regulated by statutory cycles. The government of the day must call an election any time at most three years after the previous polling day.[2] To account for this uncertainty, the period for which the relevant expenditure caps apply should be two years after the previous polling day. In the rare event that an election is called prior to two years after the previous polling day, the capped expenditure period should commence as soon as the writ is issued. Since 1969, the average time between elections has been 31.6 months; however, if elections from 2001 onwards are only counted, the figure is 35.6 months. If trends in election timing continue, the capped expenditure period will likely be almost exactly 12 months.[3]

2. To whom do the caps apply?

The expenditure cap regime is designed to apply to parties and their endorsed candidates, associated entities, independent candidates and third parties. Prescribed amounts, where applicable, should be indexed via a statutory formula each financial year.

Recommendation 2: Caps on electoral expenditure for political parties proportional to the number of electoral divisions in which they endorse candidates

There should be caps on electoral expenditure for political parties which are determined by the number of divisions in which a party endorses candidates. The figure should be based on the number of divisions, rather than the number of candidates, to prevent parties from endorsing more than one candidate per division and thus circumventing the cap. This regime for party spending already exists in South Australia, Queensland, New South Wales, the Northern Territory, and the Australian Capital Territory (ACT).[4]

The Centre for Public Integrity recommends an extrapolation of the relevant New South Wales party cap to the Commonwealth level. Currently, parties in New South Wales can spend $132,600 per electoral district with an endorsed candidate – amounting to $2.25 per enrolled elector. Extrapolated using the Commonwealth electoral roll, this would impose a total cap of $38,824,039 – or approximately $257,113 for each of the 151 House of Representatives electorates. For candidates with 15 or more endorsed House of Representatives candidates this would be the only applicable expenditure cap.

This would require the following changes in major party electoral expenditure as estimated for the 2019 election (See Appendix 1):

	Lower estimate	Upper estimate
ALP	-4.8%	-41.5%
Coalition	-49.4%	-67.6%

Figure 1: Required cuts to estimated electoral expenditure by major parties after extrapolating the New South Wales expenditure cap

For parties with less than 10 endorsed candidates in the House of Representatives but endorsing a Senate group, or only running in the Senate, the Centre for Public Integrity recommends a similar extrapolation of the New South Wales caps in the Legislative Council (See Appendix 2).[5] 

Recommendation 3: A bargaining system between endorsed candidates and political parties over the applicable expenditure cap

There should be no independent cap for endorsed candidates; there should instead be a single ‘pot’ from which the cap is allocated. The Commonwealth should adopt a candidate-party bargaining system such as occurs in South Australia. In South Australia, parties are required to allocate to their candidates a proportion of their total party cap as agreed to by the candidate up to a certain amount – with a reserve amount given to the candidate if there is disagreement between the candidate and the party.[6] This allows parties to allocate greater resources to marginal electorates, and less to safe or unwinnable electorates. Of the $257,113 allocated per endorsed candidate, the maximum allocation per division should be $300,000 – with $50,000 as the reserve amount in the event of a disagreement.

Accordingly, this allocation system requires differentiation between ‘candidate spending’ and ‘party spending’. The Centre for Public Integrity recommends adapting the Queensland definition of electoral division expenditure for this purpose.[7] Candidate spending should encompass electoral expenditure which:

1. is communicated to electors in the candidate’s electoral division; and
2. is not mainly communicated to electors outside the candidate’s electoral division.

The definition should not require that the name of the relevant candidate be explicitly mentioned,[8] as such a definition would still allow bombardment of general party advertising to voters in a specific electorate in support of the endorsed candidate.

Therefore, any electoral expenditure by the candidate or the party which satisfies this definition will fall under the candidate spending allocation bargained for between the party and the endorsed candidate. All other electoral expenditure will fall under the party’s residual cap.

It should also be noted that caps on the expenditure of political parties and candidates will likely be constitutional under this model. While the implied freedom of political communication may invalidate state laws, no cap on expenditure by parties or candidates has ever been constitutionally invalidated.[9]

Recommendation 4: Aggregation of associated entity electoral expenditure with party expenditure – with associated entity defined narrowly

The term “associated entity” is currently defined broadly in the Electoral Act 1918 (Cth). It includes any entity to which any of the following apply:

1. the entity is controlled by one or more registered political parties;
2. the entity operates wholly, or to a significant extent, for the benefit of one or more registered political parties;
3. the entity is a financial member of a registered political party;
4. another person is a financial member of a registered political party on behalf of the entity;
5. the entity has voting rights in a registered political party;
6. another person has voting rights in a registered political party on behalf of the entity;
7. the entity operates wholly, or to a significant extent, for the benefit of one or more disclosure entities and the benefit relates to one or more electoral activities (whether or not the electoral activities are undertaken during an election period).[10]

The New South Wales equivalent provision, located at s 4 of the Electoral Funding Act 2018 (NSW), is best practice. The Centre for Public Integrity considers that the Commonwealth should adopt this definition, but retain s 287(1)(a) of the Commonwealth definition. That is, an associated entity should be defined as ‘a corporation or another entity that operates solely for the benefit of one or more registered parties or elected members or is controlled by one or more registered political parties’.[11] In accordance with this definition, all electoral expenditure by associated entities should be captured by the relevant associated party’s expenditure cap.[12] All other entities not operating solely for the benefit, or under control of the party or member should rather be considered as third parties.

To ensure that the disclosure net remains widely cast, this modified definition of associated entity may only be necessary for the purposes of the expenditure cap provision/s.

Recommendation 5: Caps on electoral expenditure for independent candidates which are proportionally higher than those for endorsed candidates and parties to account for the positive externalities of general party advertising

The cap on electoral expenditure for independent candidates should be proportionally higher than the maximum endorsed candidate spend to account for the positive externalities of general party advertising. In some state expenditure cap regimes independent candidates are entitled to a higher candidate spend than endorsed candidates but are ultimately disadvantaged by additional spending allocated to the party by virtue of running the endorsed candidate.[13]

This is unfair. Political parties already maintain a distinct organisational and fundraising advantage relative to independent candidates. Additionally, party political advertising has positive spillovers for all endorsed candidates, whereas independent advertising is only directed to the election of a single candidate. Accordingly, independent candidates should be afforded a marginally higher expenditure cap than endorsed candidates.[14]

The Centre for Public Integrity recommends a maximum independent House of Representatives candidate spend of $350,000 – that is, a spend $50,000 higher than the maximum candidate allocation by political parties according to the bargaining system in Recommendations 2 and 3. This figure should be identical for ungrouped, independent Senate candidates.[15] 

This figure of $350,000 is largely consistent with spending patterns by successful independents in previous elections. Unlike endorsed candidates, independent candidates cannot defer their disclosure requirements to their political party. Instead, independent candidates report their electoral expenditure for the relevant electoral event directly to the AEC. Figure 3 details the inflation-adjusted electoral expenditure of victorious and/or incumbent independent candidates since the 2010 federal election:

Electoral event	Independent candidate	Elected?	Electoral expenditure (2021 dollars)
2019 Federal election	Helen Haines	Yes	$333,959
	Julia Banks	No	$112,260
	Kerryn Phelps	No	$293,222
	Zali Steggall	Yes	$947,239
	Andrew Wilkie	Yes	$102,721
2018 Wentworth by-election	Kerryn Phelps	Yes	$152,528
2016 Federal election	Catherine McGowan	Yes	$233,715
	Andrew Wilkie	Yes	$151,608
2013 Federal election	Catherine McGowan	Yes	$148,971
	Andrew Wilkie	Yes	$157,925
2010 Federal election	Rob Oakeshott	Yes	$97,014
	Bob Katter	Yes	$153,023
	Andrew Wilkie	Yes	$44,546
	Antony Windsor	Yes	$116,868

Figure 2: Victorious and/or incumbent independent candidate electoral expenditure since the 2010 Federal election[16]

Since 2010, the only successful independent to have exceeded $350,000 was Zali Steggall, when she spent almost $1 million in 2019. However, it is likely that many successful independent candidates – particularly the well-resourced ‘teals’ – greatly exceeded this amount at the 2022 election. This speaks volume to the rationale for expenditure caps. As successful previous campaigns show, independent candidates can win convincingly with minimal electoral expenditure. Expenditure caps seek to mitigate the ‘arms race’ of increasing expenditure, even for independent candidates.

Recommendation 6: Moderate third-party expenditure caps with a requirement to register with the Australian Electoral Commission when intending to, or having reached, a threshold level of electoral expenditure

There should be a cap on third-party electoral expenditure, and a requirement to register with the Australian Electoral Commission when a third party intends to exceed, or has already incurred, such an amount. This amount requiring registration should be sufficiently high to encourage participation by smaller organisations and civil society without being an undue administrative burden. It should not deter participation, and the AEC should play a role in providing informal advice to smaller organisations seeking to incur electoral expenditure.

A third-party cap is not as easily determined or extrapolated as a party or candidate cap. In Unions NSW v New South Wales (No 2) (‘Unions (No 2)’),[17] the High Court held that the effective halving of the New South Wales third-party expenditure cap infringed the freedom of political communication implied by sections 7 and 24 of the Australian Constitution. According to the majority, this was because the New South Wales Parliament had failed to justify the burden of halving the cap as necessary to fulfil its intended purpose of levelling the playing field and preventing the drowning out of other voices.[18] Gageler J further held that a valid third-party cap should ‘at the very least, leave a third-party campaigner with an ability meaningfully to compete on the playing field’.[19]

Accordingly, any third-party cap and associated registration threshold requirement should be determined by an inquiry by Joint Standing Committee on Electoral Matters (JSCEM) to be consistent with the findings in Unions (No 2) and therefore the Constitution – and should be periodically reviewed to ensure its ongoing compatibility. Irrespective of the final amount, this allocation for third parties should be considerably lower than the cap for a party contesting all electoral divisions – as was the New South Wales cap before it was halved and subsequently voided.[20]

3. To what do the caps apply?

The caps will apply to ‘electoral expenditure’, which is currently defined in s 287AB of the Electoral Act 1918 (Cth). They will apply additionally to in-electorate spending by third parties who, unlike parties and endorsed candidates, are not constrained by the bargaining system outlined in Recommendation 3.

Recommendation 7: Capped in-electorate spending by third parties

While in-electorate candidate spending is controlled by the bargaining process for endorsed candidates and the definition of candidate spending, there should be an additional cap on third-party spending in an electoral division (such as there is in Queensland and New South Wales).[21] The specific applicable amount should be determined by the proposed inquiry in Recommendation 6. Electoral division spending should be defined in accordance with the definition in Recommendation 2.

Recommendation 8: A broader definition of electoral matter such that most third-party issues-based advertising campaigns are captured

The definition of ‘electoral matter’ was narrowed in 2018, in turn narrowing the definition of ‘electoral expenditure’.[22] The new definition of electoral expenditure, specifically the requirement of a ‘dominant purpose’ would now not likely encompass historic third-party campaigns from the mining and tobacco industry.

The definition of electoral expenditure should be re-broadened in accordance with the New South Wales definition to capture third-party issues-based advertising campaigns which seek to indirectly influence voting at an election – thereby allowing such spending to be effectively capped.[23] 

Alternatively, the Canadian definition of ‘election advertising’ could prove useful in effectively addressing third party electoral expenditure. The definition includes ‘taking a position on an issue with which a registered party or candidate is associated’ – thereby allowing election participants to effectively define the ambit electoral expenditure.[24]

To avoid onerous electoral expenditure requirements on less-resourced third-parties, disclosure requirements should be relaxed until a threshold level of electoral expenditure has been incurred.[25]

Third-party campaigns have historically been accompanied by significant spending on advertising in response by the incumbent government.[26] While beyond the scope of this paper, third party expenditure caps must also be accompanied by stricter regulation on government advertising.[27]

4. Anti-circumvention measures: offences and penalties

Recommendation 9: An anti-circumvention offence to prevent candidates, parties, associated entities or third parties from acting in concert to circumvent the cap

An anti-circumvention offence should be inserted into the Electoral Act 1918 (Cth) in accordance with the law in other states and territories which regulate electoral expenditure.[28] Such an offence would penalise any attempt by a regulated entity to exceed their cap in concert with another entity. This provision would be particularly important with a narrower definition of associated entity than is currently maintained at the Commonwealth level (Recommendation 6).

As considered by Edelman J in Unions (No 2), such an offence, if it is to be constitutional, must extend to all actors attempting to circumvent their applicable cap – not only third parties.[29] 

Recommendation 10: A double-repayment penalty for negligently exceeding the cap, along with a punitive financial penalty and possible imprisonment for intentionally exceeding the cap, and voidance provision if the election result has been affected by the excessive spend

Expenditure caps are concerned with the effects of excess expenditure on political equality, rather than the intention of the contravening party. Accordingly, exceeding expenditure should be a strict liability offence and met with at least a double repayment penalty such as is required in the ACT.[30] 

Intentional contravention of the expenditure cap should require at least a double repayment penalty, as well as an additional punitive fine depending on the extent of the violation. To deter candidates and parties which face minimal financial constraints and could routinely incur the penalty, there should be a threshold excess spend at which the party agent or other knowing contravener faces a criminal offence and potential imprisonment.[31] 

Consistent with the focus on effects, there should also be a provision empowering the Court of Disputed Returns to void the election in a specific division if they are satisfied that it has been affected by the excessive spend.[32] This provision, particularly at the upper margin of electoral expenditure, would likely not be practical of use for most divisional contests and litigated rarely. However, it serves as an important bulwark against enormous election spending in excess of the cap and serves an important symbolic purpose: elections are not for sale.

5. Administration, enforcement, and review

Recommendation 11: Real time disclosure by parties, candidates, associated entities and third parties

To ensure that the electorate is informed on the sources and amounts of electoral expenditure, there should be a requirement for real-time disclosure as soon as is practicable by all entities incurring electoral expenditure. This data ought to be publicly available, and easy to access and navigate. The Electoral Commission of Queensland’s ‘Electronic Disclosure System’ may be a useful model to adopt.[33]

As mentioned, real-time disclosure should only be a required for third parties when they have reached the registration threshold. This is to ensure that less-resourced third parties are not dissuaded from incurring expenditure by administrative and compliance requirements.

Recommendation 12: A mandatory statutory review of the expenditure cap regime after its first election cycle

To determine whether the policy objectives of the expenditure cap regime are being realised, the amendments to the Electoral Act 1918 (Cth) should be accompanied by a mandatory statutory review of the policies and capped amounts. This is particularly important in ensuring that the regime is consistent with the implied freedom of political communication. The review should be conducted by suitably qualified persons appointed by the Parliament and receive submissions from parties, candidates, third parties as well as the public.

Recommendation 13: Increased resourcing to the AEC to manage additional educative, enforcement and compliance responsibilities

The AEC will need to play a crucial educative role regarding the regime, particularly for less-resourced political parties, independent candidates and minor third parties. This may come in the form of publications about the AEC’s interpretation of certain aspects of the law, or in supporting staff to answer queries from entities unable to conduct their own compliance work.

The AEC will also need additional resources in order to strengthen its enforcement and compliance capabilities to ensure that capped parties remain within their allotted cap, as well as to administer the real-time disclosure obligations.

About The Centre for Public Integrity

The Centre for Public Integrity is an independent think tank dedicated to preventing corruption, protecting the integrity of our accountability institutions, and eliminating undue influence of money in politics in Australia. Board members of the Centre are the Hon Stephen Charles AO KC, the Hon Anthony Whealy KC, Professor George Williams AO, Professor Joo Cheong Tham, Geoffrey Watson SC and Professor Gabrielle Appleby. Former directors include the Hon Tony Fitzgerald AC KC and the Hon David Ipp AO KC. More information at www.publicintegrity.org.au.

Appendix 1 – Estimates of Commonwealth electoral expenditure for the 2019 federal election

It is difficult to conceptualise what the effects of caps would be in the absence of clear data on major parties’ electoral expenditure at commonwealth elections. Such a figure can, however, be estimated by using Australian Electoral Commission payments data.[34] 

The 2019 federal election occurred on May 18, 2019. Therefore, electoral expenditure would be some part of the total party payments for the 2018-19 disclosure period. By subtracting the 2017-18 and 2019-20 total payments data we arrive at an ‘excess spend’ figure. Adjusted for inflation, we consider this figure the upper estimate of federal electoral expenditure.

As each party state branch reports total payments to the Australian Electoral Commission, this ‘excess spend’ figure for the 2018-19 federal election must be adjusted to account for the November 2018 Victorian State election and the March 2019 New South Wales State election which both fell in the same financial year.

We can exploit the difference in timing of previous state (four-year cycles in Victoria and New South Wales) and federal elections to roughly estimate the ‘state-election’ effect.

In New South Wales, spending by the ALP in the 2014-15 disclosure period was $19,696,862 whereas spending in the 2015-16 disclosure period was $11,734,833. Expenditure was therefore 67.84% greater in the election period in the absence of a federal election. Similarly, for the Coalition, this figure was only 9.62% greater.

In Victoria, applying the same formula, spending during the State election period was 138.75% higher by the ALP, and 102.80% higher by the Coalition compared to the 2015-16 disclosure period.

These figures can be applied to the individual payments data of the ALP and Coalition in New South Wales and Victoria to attempt to remove the increase caused by the State elections.

After applying these figures, the estimated federal spend for each branch in each state is the following:

	ALP	Coalition
New South Wales Branch	$0^	$41,735,069
Victorian Branch	$17,502,121	$7,523,468

^ = After accounting for the State election effect there was no excess spending to allocate to the federal spend.

Due to State elections during the 2018-19 disclosure period, the above figures are considered the ‘federal spend’ for each respective branch. Otherwise, the excess spend during this disclosure period in each state is considered to be federal campaign expenditure.

Adjusted for inflation and aggregating the other branches for which there was not state election in the 2018-19 financial year, we arrive at the lower estimates for electoral expenditure by the major parties.

The upper estimates of electoral expenditure in 2018-19 for the two major parties are calculated via subtracting the routine expenses on either side the financial year. Accordingly, 2018-19 electoral expenditure is the 2018-19 payments data minus the average of the 2017-18 and 2019-20 payments data for each party.

The upper and lower estimates yield the following figures (in 2021 dollars):

	ALP	Coalition
Upper Estimate	$74,548,223	$116,476,991
Lower Estimate	$39,613,931	$64,435,767

Appendix 2 – Senate expenditure caps

For the 2023 New South Wales State election the cap for a party which endorses a Legislative Council grouping but endorses Legislative Assembly candidates in 10 or less districts is 12 per cent of the maximum cap for a party running in all 93 electoral districts. The figure is the same for independent Legislative Council groupings.

Accordingly, 12 per cent of the maximum party calculated spend with 151 endorsed House candidates (See Recommendation 1) is roughly $4,658,885. The Senate election, as opposed to the New South Wales Legislative Council, is eight independent state races rather than one single race and must also be concerned with its federalist justification.

While unlikely to occur in practice, it would be unfair if a Senate-concentrated party running in six states and two territories were subject to the same cap as a Senate-concentrated party running in only one state. The applicable cap should be apportioned equally between the states, and equally between the territories, with the relevant party able to access the relevant proportion of the cap for electoral expenditure in that state if they choose to endorse a group of candidates.  

For example, if the above calculated figure were rounded up to $4,700,000, then the applicable cap-per-state could be $700,000, with a residual $250,000 left for each of the territories.

Senate groups without endorsed candidates should remain exempt from the bargaining system proposed in Recommendation 2. Parties are already required to submit lists with their preferred candidates for election, and with over 90 per cent of electors voting above the line at the 2016 and 2019 elections,[35] it is electorally unwise and unlikely that there would be ‘personalised’ campaigns for party-endorsed Senate candidates in the presence of a pre-determined list. All spending should therefore remain with the party.

For the most part, Senate elections for parties tend to be impersonal affairs, and it is unlikely that there would ever be a party that only ran Senate candidates and did so in multiple states. Consequently, the Centre for Public Integrity recommends that once a party with an endorsed Senate grouping endorses three or more candidates in the House of Representatives (pushing their aggregate bargained spend over $700,000), their cap should be wholly determined based on the number of endorsed House of Representatives candidates. As such, the bargaining system between endorsed House candidates and their parties should only commence when there are three endorsed candidates – with House candidates being allocated no candidate spend before this. From this point, the party concerned can easily expand their expenditure cap by endorsing more candidate in the House of Representatives – which both increases their electoral prospects and expands the choices of the electors.

[1] South Australia and Tasmania also maintain some form of expenditure caps, though data to determine their efficacy is not available. See Electoral Act 1985 (SA) div 6; Electoral Act 2004 (Tas) s 160.

[2] Australian Constitution s 28.

[3] By way of contrast the New South Wales capped expenditure period is approximately six months: Electoral Funding Act 2018 (NSW) s 27; the Queensland capped expenditure period is approximately eight months: Electoral Act 1992 (Qld) s 280; the ACT’s capped expenditure period is approximately nine and a half months: Electoral Act 1992 (ACT) s 198 (definition of ‘capped expenditure period’) and the South Australian capped expenditure period is approximately eight and a half months: Electoral Act 1985 (SA) s 130A (definition of ‘capped expenditure period’).

[4] See Electoral Act 1985 (SA) s 130Z(1)(b)(i); Electoral Act 1992 (Qld) s 281C(1)(a); Electoral Funding Act 2018 (NSW) s 29(2); Electoral Act 2004 (NT) s 203B(1)(a); Electoral Act 1992 (ACT) s 205F.

[5] Electoral Funding Act 2018 (NSW) ss 29(4)-(5), 29(7). See Appendix 2.

[6] Electoral Act 1985 (SA) s 130Z(2).

[7] Electoral Act 1992 (Qld) s 281B.

[8] Cf Electoral Funding Act 2018 (NSW) s 13(a).

[9] A more extensive analysis would be required of specific figures to determine for sure whether such caps are definitively consistent with the implied freedom, and at what level they may not be consistent with it. According to the current jurisprudence of the High Court, this would require a ‘structured proportionality’ assessment of the impugned law. See Murray Wesson, ‘The Reception of Structured Proportionality in Australian Constitutional Law’ (2021) 49(3) Federal Law Review 354.

[10] Electoral Act 1918 (Cth) ss 287(1) (definition of ‘associated entity), 287H.

[11] Electoral Funding Act 2018 (NSW) s 4 (definition of ‘associated entity’).

[12] See Electoral Act 1992 (Qld) s 204.

[13] See for example Electoral Funding Act 2018 (NSW) ss 29(2), 29(6), 29(7); Electoral Act 1992 (Qld) ss 281C, 281D.

[14] In South Australia the independent cap is higher, though the maximum candidate allocation would render the amounts equal: Electoral Act 1985 (SA) s 130Z(1)(d). In the Northern Territory and the ACT independent caps are equal to endorsed candidate caps: Electoral Act 2004 (NT) s 203B(1)(b); Electoral Act 1992 (ACT) s 205G(1)(a).  

[15] This is consistent with the New South Wales regime for independent candidates. See Electoral Funding Act 2018 (NSW) ss 29(7)-(8). 

[16] Data Source: ‘Transparency Register’, Australian Electoral Commission (Web Page) < https://www.aec.gov.au/parties_and_representatives/financial_disclosure/transparency-register/>.

[17] (2019) 264 CLR 595.

[18] Ibid 611 [30] (Kiefel CJ, Bell and Keane JJ).

[19] Ibid 634 [101] (Gageler J).

[20] For example, at the 2015 New South Wales State Election, the cap was $1,166,000 for a registered third-party campaigner whereas the cap for a party running candidates in all 93 electoral districts was $10,341,600.  

[21] Electoral Act 1992 (Qld) s 281E(1)(b); Electoral Funding Act (NSW) s 29(12)(b).

[22] See Electoral Act 1918 (Cth) s 4AA (definition of ‘electoral matter’); cf Electoral Act 1918 (Cth) s 4 (definition of ‘electoral matter’) as at 30 June 2018. See also Electoral Act 2018 (Cth) s 287AB (definition of ‘electoral expenditure’).

[23] See Electoral Funding Act 2018 (NSW) s 7 (definition of ‘electoral expenditure’).

[24] See Canada Elections Act, SC 2000, c 9, s 2(1) (definition of ‘election advertising’). See also Harper v Canada (Attorney-General) 2004 SCC 33 [90] (Bastarache J).

[25] See Electoral Act 1918 (Cth) div 5A. 

[26] Graeme Orr & Anika Gauja, ‘Third-Party Campaigning and Issue-Advertising in Australia’ (2014) 60(1) Australian Journal of Politics and History 73.

[27] See for example Joo-Cheong Tham, ‘Government advertising may be legal, but its corrupting our electoral process’, The Conversation (online, 10 April 2019) < https://theconversation.com/government-advertising-may-be-legal-but-its-corrupting-our-electoral-process-115061>.

[28] See Electoral Funding Act 2018 (NSW) ss 35, 144; Electoral Act 1993 (NZ) s 203F(3); Electoral Act 1992 (Qld) s 307B; Electoral Act 2004 (NT) s 203D.

[29] Unions No 2 (n 15) 651-675 (Edelman J); see for example Electoral Funding Act 2018 (NSW) s 35.

[30] See Electoral Act 1992 (ACT) ss 205F, 205G.

[31] For example, the Electoral Act 2004 (NT) ss 203C requires intentional incursion of the relevant section; however contravention is met with a fine of up to $48,600 (for financial year 2022-23) and imprisonment of up to 18 months.

[32] See Electoral Act 1985 (SA) ss 130ZA, 107(7). 

[33] ‘Electronic Disclosure System’, Electoral Commission of Queensland (Web Page, 2020) < https://disclosures.ecq.qld.gov.au/>.

[34] Data Source: ‘Transparency Register’, Australian Electoral Commission (Web Page) < https://www.aec.gov.au/parties_and_representatives/financial_disclosure/transparency-register/>.

[35] Antony Green, ‘2019 Senate Election – Above and Below the Line Vote Breakdown’, Antony Green’s Election Blog (Web Page) <https://antonygreen.com.au/2019-senate-election-above-and-below-the-line-vote-breakdown/>.

A farewell to arms – The case for Commonwealth expenditure caps Part 1