The Federal Liberal Party has been caught making false claims about the legality of political “donations” from foreign governments in an apparent attempt to cover-up illegal payments it accepted from Singaporean Government-owned telco Optus.
It is illegal for a “foreign donor” to make donations of $100 or more to a political party in a financial year.
The Federal Liberal Party has claimed that a company is not a “foreign donor” if — regardless of who actually owns it, funds it or runs it — the company is “incorporated in Australia”; if the company has its “head office in Australia”; or if its “principal place of activity is in Australia”.
If those claims were correct it would mean, for example, that any foreign entity — including any foreign government — could simply register an Australian company with the Australian Securities and Investments Commission (ASIC) for a few hundred dollars and make whatever political donations it liked.
Yet a simple review of the law reveals the Liberal Party’s claims are false.
Singtel Optus Pty Ltd (trading as Optus) has disclosed making $69,900 in political “donations” to political parties in Australia in 2021-2022.
It has disclosed “donations” to the Liberal Party ($31,500), to the National Party ($9,900) and to ALP ($28,500).
Optus is majority owned and controlled by the Singaporean Government (Optus is 100 per cent owned by Singtel which is 52 per cent owned by Temasek Holdings, which is 100 per cent owned by the Singaporean Government).
Liberal Party federal director Andrew Hirst (left); AEC Commissioner Tom Rogers. Source: Supplied
The Klaxon put questions about the legality of the Optus payments to Andrew Hirst, federal director of the Liberal Party of Australia.
(Of the reported donations by Singtel Optus Pty Ltd to the Liberal Party, $30,000 was to the federal branch of the Liberal Party and $1,500 was to the NSW branch of the party).
We received back the following:
“Section 287AA of the Commonwealth Electoral Act contains the definition of a foreign donor.
“It clearly states that a company which is incorporated in Australia, has its head office in Australia, or principal place of activity in Australia, is not a foreign donor”.
This is false. Section 287AA of the Commonwealth Electoral Act does not state this.
As Section 287AA states, there are six criteria for “foreign donor”, (a) through (f).
If any one of those criteria is met then the entity is a foreign donor under the law.
As previously reported, Optus meets criteria (c) – it is a “foreign donor” because it is a “foreign public enterprise”.
(Optus appears to meet several of the six criteria, but it only needs to meet one to be a “foreign donor” under the law).
As can be seen above, Section 287AA does contains the words “an entity is incorporated in Australia”, “the entity’s head office is in Australia”, and “the entity’s principal place of activity is, or is in, Australia”.
Yet even the most elementary reading of the section shows they in no way carry the meaning claimed by the Liberal Party.
The fourth criteria (d) states an entity is a “foreign donor” if it “does not” meet “any” of the following:
(i) the entity is incorporated in Australia
(ii) the entity’s head office in Australia
(iii) the entity’s principal place of activity is, or is in, Australia
That means, if an entity does not meet any one of the above, then it is a “foreign donor” – that is, it satisfies criteria (d).
But this does not mean that if an entity does meet any one of the above then it “is not” a “foreign donor”.
Section 287AA makes no provision for what “is not” a foreign donor, as the Liberal Party asserts.
In any event, to be a “foreign donor” an entity must meet only one of the six criteria, (a) through (f).
If an entity does not meet criteria (d), for example, it is still a “foreign donor” if it meets any one of the five other criteria.
As previoulsy reported, Optus is a “foreign donor” because it meets (at the very least) criteria (c) because it meets the definition of a “foreign public enterprise”.
That’s because it is 100 per cent owned by Singtel, which is controlled and 52 per cent owned by Singaporean Government’s investment vehicle Temasek Holdings.
Under Australian law, an entity is a “foreign public enterprise” if a foreign government “holds more than 50 per cent” of its shares, or if a foreign government “is in a position to exercise control over the company”.
With 52 per cent of the shares, Temasek has control over Singtel.
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