December 2003 - Review of Electoral Acts

Part VI DONATIONS AND ELECTION EXPENSES AT PRESIDENTIAL ELECTIONS

In the context of a presidential election, the Standards Commission has no experience of the operation of the provisions of the legislation relating to the opening and maintenance of political donations accounts, the limitation and disclosure of election expenditure or the supervision of third parties. Accordingly, the comments provided below are based on experience at the Dáil and European Parliament elections.

DONATIONS:

Section 46 (2) (aa)
a) The definition of 'candidate' in section 46(2)(aa) of the Act appears to exclude a person who is nominated in the period between the date of the making of the order appointing polling day and close of nominations. (A different definition of 'candidate' is provided in section 27.)

b) Provide that the definition of 'institution' include credit unions.

Section 47
While specifically prohibited from accepting donations in excess of the limit or from accepting foreign donations, the presidential election agent is not precluded from accepting anonymous donations. Election agents should be prohibited from accepting anonymous donations.

Delete the reference in subsection 2 to third parties and provide a new subsection which requires third parties to remit an anonymous donation or the value thereof to the Standards Commission within 14 days of its receipt at a presidential election (this would be consistent with the provisions of section 23).

Provide a reference in subsection 3 to the new subsection suggested above.

Section 48A
Section 48A(4) as currently worded states that the election agent is responsible for returning or remitting prohibited donations received by candidates, the election agent and third parties. It is assumed that the following is the intended position:

• Third parties are responsible for returning / remitting to the Standards Commission donations received by them.
• The candidate is responsible for ensuring that any prohibited donations received before the appointment of an election agent are notified to the election agent after his / her appointment.
• Once appointed the election agent is responsible for returning / remitting any prohibited donations including those received by the candidate prior to the election agent's appointment.

If this is what is intended, then it should be specifically provided for in this section.

It is assumed that section 48A(5) applies to all donations received by the candidate before the appointment of an election agent (and not just to prohibited donations). There should be an offence and penalty for a candidate who fails to provide relevant information regarding the receipt of donations to his / her election agent (as in sections 52(7A)).

Provide that where prohibited donations are notified and remitted to the Standards Commission under this section, a copy of the notification shall be laid before both Houses of the Oireachtas and the amount remitted shall be disposed of in accordance with the directions of the Minister for Finance.

Section 48B
(i) specify that a separate account must be opened in respect of donations received in relation to a presidential election (notwithstanding the fact that the candidate / election agent may already have an existing political donations account); or

(ii) provide for the use of an existing political donations account by specifying that where an existing account is being used the statement from the financial institution will be in respect of a specific period (e.g. 6 / 12 months prior to polling day or the date the first monetary donation of more than €126.97 was received in relation to the election).

(iii) It appears to be the case that the candidate is required to open and maintain a political donations account if a monetary donation of more than €127.00 is received prior to the appointment of an election agent. Thereafter the election agent is required to open and maintain a political donations account if a monetary donation of more than €127.00 is received by the candidate. The election agent, however, is required to complete a certificate of monetary donations and furnish the supporting documentation in respect of both accounts. It should be provided that where a candidate is required to open a political donations account before the appointment of an election agent he / she is responsible for furnishing the statutory documentation to the Standards Commission in relation to that account.

Section 48B - Surplus donations
Provide for the disposal of surplus donations - see 23B (surplus donations) above.

Section 48B(2)(a) - Donations received after polling day.
Provide for transactions which may take place on the account after polling day (see 23B(4)(a) above.

Section 48C
As stated in Part 3 of this document (Third Parties), provide for a single registration for the purposes of complying with sections 48C and 52(7).

ELECTION EXPENSES:

Section 51.
It is not clear what the purpose of this provision is.

Section 52(1) Definition of what are election expenses / what are not election expenses.
The comments provided in relation to section 31 and the definition of election expenses contained in the Schedule to the Act, may also be relevant in relation to section 52.

Section 52(3) Election period.
The comments in Part 2 above, in relation to the election period at a Dáil election, may also apply to a presidential election.

Section 52(5) and (6) - connected bodies.
The comments above in relation to section 31(6) and (7) may also be relevant.

Section 52(7) and (7A) - Sanctions on candidates (and others) who fail to assist an election agent.
The comments above in relation to section 31(8) and (8A) may also be relevant (the references to assisting a national agent do not apply in relation to a presidential election).

Provide a penalty for candidates who are found guilty of the offence referred to in section 52(7A).

Section 61
Provide an offence and penalty for failing to open and maintain a political donations account when required to do so.

There should be a general offence for failing to comply with the provisions of this part.

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