South Australia – 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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Collections for Charitable Purposes Act 1939 and Code of Practice

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Regulator

Attorney General’s Department (Consumer & Business Services).

Code of Practice[1]

Purpose

“An Act to provide for the control of persons soliciting money or property for certain charitable purposes; and for other purposes.”[2]

Regulated activity

‘Collectors’ for charitable purpose

Regulated person

Persons who acts as a ‘collector’ –

collector—a person acts as a collector if the person (either personally or through the agency of another person) —

  1. collects, or attempts to collect, money or property wholly or partly for a charitable purpose;
  2. charges, or attempts to charge, for admission to an entertainment in relation to which it is held out that the proceeds are to be devoted wholly or partly to a charitable purpose; or
  3. obtains, or attempts to obtain, money wholly or partly for a charitable purpose by the sale of a disc, badge, token, flower, ribbon or other device; or
  4. obtains, or attempts to obtain, a bequest, devise or other grant of money or property wholly or partly for a charitable purpose.” [Section 4 of the Act]

Interstate observation

Is “collection” made, or money “obtained” in SA, if a charity’s collecting bank is not in SA and there is no other connection with SA other than a web site hosted in another State, able to be viewed in SA? The “obtain” language taken together with the Code of Practice – If a charity allows an ongoing collection agreement to be made over the internet – may seek to extend the regulation beyond the SA borders.

Key operative provision

6. Collectors must be authorized by licence

  1. … [A] person must not act as a collector unless the person holds, or is authorised by the holder of, a section 6 licence …”

Note: Section 6A – if a paid collector engages others (including volunteers) to help in the collection; the paid collector has to hold an s6A licence.

Religious exception

No exemption

Charity[3]

charitable purpose means—

  1. the provision of, or assistance or support to the provision of, health services (within the meaning of the Health Care Act 2008 ) or research in the field of health or such health services;
  2. the affording of relief, assistance or support to diseased, disabled, sick, infirm, incurable, poor, destitute, helpless, or unemployed persons, or to the dependents of any such persons;
  3. the relief of distress occasioned by war, whether occasioned in South Australia or elsewhere;
  4. the affording of relief, assistance, or support to persons who are or have been members of the armed forces of Australia or to the dependents of any such persons;
  5. the provision of welfare services for animals.”

ACNC charity

An ACNC registered charity and while so registered is taken to hold an s6 licence.[4]

Local address

No requirement

Separate bank account

No requirement

Internet fundraising

Express treatment of internet fundraising in the Code of Practice.

8. Ongoing collection agreements

In relation to ongoing collection agreements the following requirements apply:

  1. If a charity contacts a potential donor by telephone to negotiate an ongoing collection agreement, the following information must be provided to the potential donor, prior to the agreement being made …
  2. If a charity allows an ongoing collection agreement to be made over the internet, the following information must be provided to the potential donor on the same page as that on which the donor confirms and accepts the terms of the agreement:
    1. the amount of the proposed ongoing donation;
    2. the annual cost to the donor;
    3. the proposed frequency of the ongoing donation;
    4. a statement that the donor has a right to terminate an ongoing collection agreement at any time; and
    5. details about how the donor can terminate the ongoing collection agreement.
  3. Within ten business days of the agreement being made, the charity must provide to the donor, written confirmation of the terms of the agreement.    If an ongoing collection agreement is entered into by telephone or internet, the charity must provide the donor with written confirmation of the agreement by email or post.
  4. Written confirmation must include:
    1. the amount of the agreed ongoing donation;
    2. the annual cost to the donor;
    3. the frequency of the agreed ongoing donation;
    4. the date of the commencement of the agreement;
    5. a statement that the donor has a right to terminate an ongoing collection agreement at any time; and
    6. details about how the donor can terminate the ongoing collection agreement.
  5. Upon receipt of a termination notification from a donor with an ongoing collection agreement, the charity must immediately terminate that agreement.
  6. Any donation collected after receipt of notification from a donor to terminate an ongoing collection agreement must be refunded within ten business days.
  7. Any termination of an ongoing collection agreement must be confirmed in writing by email or post to the donor within ten business days of the donor’s request to terminate the agreement.

9. Promotion of collection activities

A charity must ensure the promotion of collection activities complies with the following requirements:

  1. (1) charity websites must include either on the home page, or by way of a link from the home page, the following details:
    1. the charity’s name;
    2. the purpose for which funds are being collected; and
    3. contact details of the charity.
  2. (5) internet advertising must include the following details:
    1. the charity’s name;
    2. the purpose for which funds are being collected; and
    3. the charity’s website (if any).

Limits on commercial fees

Licences can be revoked by the Minister for excessive commissions to paid collectors including the ACNC charity deemed licence.[5]

Surprising bits

  • Obtaining bequests is caught by the legislation[6]. This is usually an exemption in the other states.

Outdated bits

  • Tightly prescribed limits apply on what can be paid to a speaker performer at the charity event which must be disclosed at the request of any person if the limit is likely to be exceeded. The prescribed amount includes expenses such as travel and accommodations costs.[7] The prescribed amount = $5,000.[8]
  • Consideration in granting a licence (not a s6A licence) is whether there is another charity who could more effectively do the fundraising.[9]

You can find the SA Register here

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References

  • [1] Compliance with a condition of licence grant
  • [2] Preamble to the Act
  • [3] s4 of the Act
  • [4] s6(3) of the Act
  • [5] s6(7) of the Act
  • [6] See the definition of “collector” in s4 of the Act
  • [7] s7(3) & (4) of the Act
  • [8] s7(6) of the Act
  • [9] s11(2) of the Act