New South Wales – Charitable Fundraising Acts & Regulations

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Note: The following is an abridged version of Andrew Lind’s Fundraising Regulation paper. To receive the full copy, please use the form below.

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Charitable Fundraising Act 1991 & Charitable Fundraising Regulation 2015

A map of Australia highlighting the state of New South Wales

Regulator

NSW Fair Trading

Purpose

The objects of this Act are:

  1. to promote proper and efficient management and administration of fundraising appeals for charitable purposes, and
  2. to ensure proper keeping and auditing of accounts in connection with such appeals, and
  3. to prevent deception of members of the public who desire to support worthy causes.[1]

Regulated activity

A ‘fundraising appeal’ for a charitable purpose[2]. “Fundraising appeal” is defined in s5 – “the soliciting or receiving by any person of any money, property or other benefit” for a purpose that includes a charitable purpose.

Interstate observation

Does a person “solicit” or “receive” in NSW if there is no other connection with NSW other than a web site based in another State able to be viewed in NSW? Arguably not. “Receive” is not defined and so takes its ordinary meaning, defined in the Macquarie Dictionary as, “to take into one’s hand or one’s possession (something offered or delivered)”. The context of its use is consistent with this meaning.

Regulated person

A person who conducts a fundraising appeal[3] (including those who participate in it[4])

Key operative provision

9. Conducting unlawful fundraising

  1. A person who conducts a fundraising appeal is guilty of an offence unless the person:
    1. is the holder of an authority authorising the person to conduct the appeal, or
    2. is a member of an organisation, or an employee or agent of a person or organisation, that holds such an authority and is authorised, by the person or organisation that holds the authority, to conduct the appeal …

Religious exception

Religious body (or affiliated body)[5]

Charity

“Charitable purpose” is defined without any great length to include any benevolent, philanthropic or patriotic purpose.[6]

Local NSW address needed

A local address is needed but the wording of the section leaves open this being the address of an agent.[7]

Separate bank account[8]

Funds from appeals must be banked to a dedicated bank account operated by not fewer than 2 persons jointly (even electronically).

Limits on commercial fees

Commissions paid or payable to any person as part of a fundraising appeal must not exceed one-third of the gross money obtained by that person in the appeal.[9]

Surprising bits

  • The charity, not the regulator, must produce financial statements of fundraising appeals during the previous financial year, to any person within 30 days of request.[10]
  • Remuneration of board members of fundraising charities (with the exception of ministers of religion) is prohibited unless approved by the Minister.[11]
  • Offences (breaches of the Act) by corporations attach to the directors personally if they knowingly authorized or permitted the contravention.[12]
  • Changes to charitable objects must be notified to the regulator.[13]

Outdated bits

  • There is no mention of fundraising over the internet. Where the person is participating in the fundraising appeal by phone, email, mail or any other means which is not face-to-face, and that person is remunerated for the fundraising, he or she must disclose this to the person being solicited whether requested to or not.[14]

You can find the NSW Register here.

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References

  • [1] s3 of the Act
  • [2] s9 of the Act
  • [3] s9 of the Act
  • [4] s6 of the Act
  • [5] s7  of the Act
  • [6] Ibid s 4.
  • [7] s15(2) of the Act
  • [8] s20(6) of the Act
  • [9] s10(6) of the Regs
  • [10] s47(1) of the Act
  • [11] s48 of the Act
  • [12] s51(1) if the Act
  • [13] s16(1) of the Regs
  • [14] Ibid reg 14(a)-(b).