Summary of key amendments to electoral law

The maximum period of early voting has been reduced to 7 days preceding the election day, instead of 13 days previously. For the 2023 NSW State election, early voting will commence on Saturday, 18 March 2023.

An alternate method of postal voting may be used.

The Electoral Commissioner may determine that an alternate method of postal voting be used at the 2023 NSW State election (or a by-election held after March 2023 and before the 2027 NSW State election).

The key change to the postal voting method is that an elector’s postal vote certificate is to be sealed inside the envelope in which their vote is returned, instead of being printed on that envelope. This will allow the NSW Electoral Commission flexibility in relation to the format of the postal vote certificate to meet the logistical challenges of heightened demand for postal votes and the production of postal vote certificates.

Postal votes may be accepted up to 13 days after the election day.

Postal votes are allowed to be accepted in the scrutiny if received by the expiry of the period following the close of voting prescribed by the regulations, which may not exceed 13 days, instead of 4 days previously. The period for the 2023 NSW State election has not yet been prescribed and further information will be made available when a regulation is made.

Please note that Friday, 7 April 2023 (which is 13 days after the election day) is the Good Friday public holiday.

Technology assisted voting, other than telephone voting for electors who are blind or have low vision, is not to be used at the 2023 NSW State election (or a by-election held after 30 June 2022 and before that State election). The regulations may authorise the Electoral Commissioner to determine that telephone voting by COVID-19 affected electors is permitted.

Guidelines may be issued about offences under the ‘6 metre rule’.

A voting centre manager or an election official must not exercise certain functions in relation to contravention of offences within 6 metres of a voting centre, such as giving directions or removing or confiscating posters and electoral material, unless they have considered guidelines, if any, issued by the Electoral Commissioner.

Automated telephone calls must include an authorisation.

Automated telephone calls containing electoral matter (also known as ‘robocalls’) must contain the name and address of an individual on whose instructions the call was made. Contravention of this rule is a criminal offence. Automated telephone calls include automated “push poll” (attempting to sway or alter prospective voters’ view) or traditional automated polls that contain electoral matter.

A disclosure is the reporting of political donations and electoral expenditure to the NSW Electoral Commission. The following changes now apply to disclosures:

The due date for lodging a half-yearly donation disclosure is now six weeks following the end of the disclosure period, rather than four weeks.

• All political donations (except those disclosed in a pre-election period disclosure) must be disclosed every six months in a half-yearly donation disclosure.

• Half-yearly disclosures must now be lodged within six weeks (rather than four weeks) of the end of each half-year period.

• Disclosures must be made during the disclosure lodgement period for each half-yearly period. The new dates for half-yearly disclosures are as follows:

Disclosure type	Disclosure period	Disclosure lodgement period
1st half-yearly political donations disclosure	1 July to 31 December	1 January to 11 February
2nd half-yearly political donations disclosure	1 January to 30 June	1 July to 11 August

The value of small donations made at a fundraising event that do not need to be aggregated for disclosure purposes has increased from $50 to $100.

• When aggregated, small donations may become reportable. A reportable political donation includes multiple donations made by the same donor to the same recipient that in aggregate are valued at $1,000 or more in one financial year. Reportable donations must be disclosed to the NSW Electoral Commission.

• However, a small donation of $100 or less (rather than $50 or less) does not have to be aggregated with other donations for disclosure purposes if it was the only donation made by a person at a fundraising venture or function.

Requests for extensions to lodge a disclosure may be made on the due date.

• If you are unable to submit a disclosure form by the due date, you can request an extension, which may be granted if the Electoral Commission is satisfied there is good cause. Requests for extensions may now be made up to, (instead of before) the day the disclosure is due.

A registered officer of a party can now lodge a disclosure or public funding claim instead of the party agent if certain conditions are met.

• A party agent remains the person who is legally responsible for making disclosures for a political party.

• The registered officer of a political party can now lodge a disclosure (or public funding claim) when the party agent is absent or unavailable if:

  • the registered officer has completed the agent training (or is exempt), and

  • the party agent or registered officer has advised the Electoral Commission in writing in advance of any occasion on which the registered officer is to lodge a disclose or claim on the agent’s behalf.

A party agent may no longer be responsible for lodging disclosures for a dis-endorsed candidate.

• Where a candidate in a State election has been dis-endorsed by a political party, the party agent may notify the Electoral Commission of this. Once the Electoral Commission has received this notice, the person responsible for making a disclosure for the dis-endorsed candidate will be the candidate, and not the party agent of the party.

Caps on third-party campaigner electoral expenditure now apply at the 2023 NSW State election.

• The capped expenditure period for the 2023 NSW State election commenced on Saturday, 1 October 2022 and ends on election day, Saturday, 25 March 2023.

• The amendment introduces a state-wide third-party campaigner expenditure cap that applies at the 2023 NSW State election:

  • $1,288,500—if the third-party campaigner was registered before the commencement of the capped State expenditure period for the election (1 October 2022), or
  • $644,300—in other cases.

• The additional cap for individual Assembly seats still apply.

Acting in concert provisions have been removed.

• The Electoral Legislation Amendment Bill 2022 removes Section 35 of the Electoral Funding Act 2018, which placed additional restrictions on third-party campaigners that act in concert with other persons to incur electoral expenditure during the capped expenditure period.

The definition of electoral expenditure has been amended to exclude the cost of auditing campaign accounts. This applies to all stakeholders and for all purposes.

For the purpose of calculating electoral expenditure counted towards the caps, the following exemptions now apply:

• The cost of expenditure incurred on travel and travel accommodation for candidates and staff engaged in electoral campaigning. (Note: this does not apply to expenditure incurred in connection with a motor vehicle, vessel or aircraft decorated with or displaying advertising or electoral material for a candidate or party – which must be included in the calculation of electoral expenditure counted towards the caps).

• The cost of expenditure incurred for office accommodation for a single campaign office for a candidate or a party engaged in an election campaign, including for the campaign headquarters of a party, but only to a maximum amount of $20,000 for the current 2023 State election capped expenditure period. (Note: such costs over $20,000 must be included in the calculation of electoral expenditure counted towards the caps).

The amounts that are exempt from the expenditure caps must still be disclosed as electoral expenditure.

The purpose of the Election Campaigns Fund is to reimburse eligible candidates and parties for certain electoral expenditure incurred in connection with a State election or a State by-election. After an election, a political party or candidate that is eligible to receive a payment may make a claim with the NSW Electoral Commission to receive payments from the fund.

The following change now applies to the Election Campaigns Fund:

• Entitlements to advance payments - a party may now receive a further 25% of the total amount to which it was entitled for the previous general election, after the issue of the writs for the current general election (for the 2023 NSW State election, the issue of writs is expected to be on 6 March 2023).

The purpose of the Administration Fund is to reimburse eligible political parties and independent members of Parliament for administrative and operating expenditure. A political party or elected member that is eligible to receive a payment may make a claim with the NSW Electoral Commission for payment from the fund.

The following changes now apply to the Administration Fund:

• Unspent administration funding - a party or elected member may carry over any unspent administration funding entitlement to a subsequent quarter within the same calendar year.

• Quarterly advance payments - a claim for quarterly advance payment can be made at least 2 weeks before the end of each quarter, and the quarterly advance payment is now equal to 100 per cent (rather than 50 per cent) of the quarterly entitlement of the party or elected member.

• Lodging a disclosure or public funding claim - a registered officer is permitted to lodge a disclosure or public funding claim instead of the party agent if the agent is absent – providing the following conditions are met:

  • the registered officer has completed the NSW Electoral Commission’s agent training (unless exempt); and

  • the NSW Electoral Commission has been notified in writing (by the party agent or registered officer

The purpose of the New Parties Fund is to reimburse eligible political parties for policy development expenditure. A political party that is eligible to receive a payment may make a claim with the NSW Electoral Commission for payment from the fund.

The following changes now apply to the New Parties Fund:

• New Parties funding amounts - the maximum amount payable for expenditure incurred in 2022 for eligible parties is seventy cents for each first preference vote received by any candidate endorsed by the party at the previous state general election. For the first 8 years after registration, the maximum amount available is at least $13,300.

• Move from calendar to financial year - the New Parties Fund now makes reimbursements based on expenditure incurred in a financial year (rather than calendar year). As such, the annual amount payable to an eligible party is the amount of actual policy development expenditure incurred by the party during the financial year (up to a certain amount).

• Transitional provisions – due to the move from a calendar to a financial year, eligible parties will be able to claim reimbursement for expenditure incurred during the six-month period ending 30 June 2022. Eligible parties will be contacted shortly.

• Lodging a disclosure or public funding claim - a registered officer is permitted to lodge a disclosure or public funding claim instead of the party agent if the agent is absent – providing the following conditions are met:

  • the registered officer has completed the NSW Electoral Commission’s agent training (unless exempt); and

  • the NSW Electoral Commission has been notified in writing (by the party agent or registered officer).

It is unlawful for prohibited donors to make a political donation or loan. The following changes now apply to prohibited donors:

• A registered club (as defined by the Registered Clubs Act 1976) is a prohibited donor if the business undertaken by the registered club includes wagering, betting or other gambling.
  • The secretary of the registered club, a member of the governing body of the registered club, the spouse of the secretary or member of the governing body, and close associates of the registered club, are also prohibited donors.
  • Permitting the use of part of the premises of a registered club is not a prohibited political donation, as long as goods or services are not provided in association with the use of the premises, such as:
    • food
    • beverages
    • use of staff or contractors
    • use of IT or AV facilities.

Registered club premises cannot be used for electoral fundraising purposes or an electoral campaign office.