Queensland – 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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Queensland: Collections Act 1966 (QLD) and Collections Regulations 2008 (QLD)

A map of Australia highlighting the state of Queensland

Regulator

The Queensland Office of Fair Trading (OFT).

Purpose

“An Act relating to collections from the public for purposes of charity and otherwise of the community, and for other purposes.”[1]

Regulated activity

An ‘appeal for support’[2] at least in part for a charitable or community purpose.[3] An ‘appeal for support’ is defined under section 5 of the Act as any expressed or implied invitation to the public designed to obtain money or articles for a charitable of community purpose.[4]

Interstate observation

“Receiving” is not included as it is in other states. Is an “invitation” made in Queensland if there is no other connection with Queensland other than a web site hosted in another State, able to be viewed and in Queensland and donated to via a resident of Queensland?

Regulated person

Any person making an appeal for support (charities, not-for-profits, officer holders, agents).

Key operative provision

10. Conducting of unlawful appeals for support

  1. No person shall make or cause to be made or assist in making any appeal for support for any purpose to which this part applies unless—
    1. where the appeal for support is made for the purpose of a charity only—that charity is then registered as such under this Act;
    2. where the appeal for support is made for the purpose referred to in section 9(b) to (g)—that purpose is then sanctioned under this Act.

Religious exception

Appeals for support by religious denominations[5] solely for the purpose of advancing that religion.[6]

Charity[7]

charitable purpose means any 1 or more of the following purposes—

  1. a purpose which is exclusively charitable according to the law (other than statute law) of Queensland;
  2. the supplying of help, aid, relief, or support to, or the education or instruction (whether spiritual, mental, physical, technical, social, or otherwise) of, or the care, housing, or assistance otherwise of, any persons in distress;
  3. the aiding in any manner howsoever, of any hospital or ambulance or nursing service in the State, whether established or proposed to be established;
  4. any charity;
  5. any purpose which, pursuant to subsection (2), the Minister determines to be a charitable purpose;
  6. a purpose declared under a regulation to be a charitable purpose for this Act.

charity means any association established for any charitable purpose, and includes any association which, pursuant to subsection (2), the Minister determines to be a charity as well as associations declared to be charities under a regulation, but does not include any association established for any charitable purpose as well as some other purpose, nor any association established for the purpose of making 1 appeal for support only.

Local address

No requirement

Separate bank account

Funds from appeals must be banked to a dedicated bank account and all expenses (including commissions) paid out of that same account (with some concession when the running of the campaign is outsourced to paid fundraisers).[8]

Limits on commercial fees (example)

Advertising by paid fundraisers needs to provide particulars of the beneficial arrangements in favour of the paid fundraiser and pre-approved by the OFT.[9]

Surprising bits

  • The Act contains extensive machinery for the establishment and operation of a State Disaster Relief Fund.
  • Agreement with paid fundraisers must not just be in writing, but also approved by the Minister.[10]

Outdated / conflicting bits

  • No mention of fundraising over the internet.
  • The Act doesn’t apply to “appeals for support by religious denominations solely for the purpose of advancing that religion”[11] but then does apply to “door-to-door appeal or street collection for any such purpose made by or on behalf of any religious denomination.”[12]
  • The Minister under the Act can grant exclusive IP rights to “distribute or dispose of a device in connection with all or any appeals for support.”[13] The OFT confirmed via telephone on 8 May 2017 that no such grants have been made and therefore there is no register of them.
  • Any member of the public may object to application for registration of a charity under the Act on the basis that the objects of the charity are already covered by another already registered charity.[14]
  • Notice of paid collectors’ itineraries (in detail) must be given to the Minister 14 days in advance.[15]
  • Envelope collections can only be collected if they are closed.[16]
  • Loss of earning allowance for people required for evidence on investigation = $10.50 / day.[17]
  • Expenditure over $100 must be approved or ratified by the governing body of the fundraiser.[18]

You can find the Qld Register here

Query → Constitutional law issue

Just because a non-Queensland based charity, that has no physical presence in Queensland, makes an appeal on its web site hosted on a server not in Queensland that is able to be viewed and responded to by Queensland residents, is that charity making an appeal for support (invitation to the public) in Queensland, to which the Queensland law can respond? There are no people, infrastructure or conduct in Queensland by the fundraiser. There may well be Constitutional issues here for further consideration including:

  • Ex Territorial affect of laws (the degree of connection with Queensland required). As a general principle the law making of a State is to be for the peace, welfare (or order) and good government of the State.
  • Competing State Law / Conflict of law issues when the laws of more than one State purport to regulate the same activities. Halsbury’s Laws of Australia provides this summary – “Although the (CTH) Australia Act 1986 (the ‘Act’) declares that each State Parliament has power to make laws having an extraterritorial operation, such laws are still required to be ‘laws for the peace, order and good government of that State’. Notwithstanding the Act, each of the States may be subject to a territorial limitation implicit in the Commonwealth Constitution, a limitation designed to curtail intrusion by a State into the affairs of the other States. However, a State may legislate in respect of matters and things occurring elsewhere in Australia if there is still a substantial connection with the State in question.”[19]

This same Constitutional law issue could be raised under each State.

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References

  • [1] From the preamble to the Act
  • [2] s10 of the Act
  • [3] s9 of the Act
  • [4] Ibid.
  • [5] This in turn is given a particular meaning under the Marriage Act.
  • [6] Ibid s 6(2).
  • [7] s5 of the Act. The Act also applies to community purpose fundraising that is not for charity.
  • [8] Reg 34
  • [9] Reg 35
  • [10] Reg 33
  • [11] s9 of the Act
  • [12] s14A of the Act
  • [13] Part 5 of the Act and Part 5 of the Regs
  • [14] Reg 5
  • [15] Reg 20
  • [16] Reg 22
  • [17] Reg 28
  • [18] Schedule 2, item 2 of the Regs
  • [19] Halsbury’s Laws of Australia, Legislative Powers of the States, Para 90-1215