13/12/07 - Report on disclosure of donations and election expenses at Dáil general election of 2007

5.1 - Legal Requirements

Section 31(7) of the Act provides that any person who intends to incur election expenses at a Dáil general election and who has not been authorised to do so by either the election agent of a candidate or the national agent of a political party, must, before incurring any such expenses, provide the following information to the Standards Commission:

1. the name, address and description of the person proposing to incur the expenses,
2. a statement of the nature, purpose and estimated amount of such expenses, and
3. an indication of the person's connection, if any, with any party or candidate at the election.

It is an offence under section 43(3)(a) of the Act for a person to whom section 31(7) applies to fail to comply with the above requirements.

The requirements of section 31(7) apply to an individual, body corporate or unincorporated body of persons who intend to incur election expenses (referred to hereafter as "other persons"). Once an "other person" has complied with the requirements of section 31(7), there is no statutory limit to the amount of expenses which may be incurred by that person at the election.

Section 31(6) of the Act, however, provides that where election expenses are incurred at a Dáil general election by a body which -

1. was established by or on behalf of a political party or candidate for the purposes of incurring election expenses or making payments in respect of election expenses, or
2. is a member of or is a branch or subsidiary organisation of a political party, or
3. is effectively controlled by a political party or candidate or is or appears to be so connected with or associated with a political party or candidate that a reasonable person would believe that it is controlled or substantially influenced by that political party or candidate,

the expenses will be deemed to have been incurred on behalf of the candidate or party concerned and must be accounted for by the relevant election agent or national agent. Effectively this means that where a person incurs election expenses and the Standards Commission considers the person to be connected to a candidate or party it can require the candidate's election agent or the party's national agent to account for the expenditure.

Where a donation exceeding €126.97 has been received for political purposes the "other person" would also be required to register as a "third party" under section 23(C) of the Act. ("Political purposes" as defined in the Act includes to incur election expenses.) The requirement to register as a third party is separate and additional to the requirement to notify the Standards Commission of an intent to incur election expenses.

Once registered as a "third party" an individual/organisation is also subject to the requirements of the Act concerning the opening and maintenance of political donations accounts and the acceptance of prohibited donations (anonymous donations, foreign donations and donations in excess of the maximum prescribed limit). The maximum donation which can be accepted by a third party from the same donor in any given year is €6,348.69.

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