Victoria – 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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Fundraising Act 1998 & Fundraising Regulations 2009

A map of Australia highlighting the state of Victoria

Regulator

Consumer Affairs Victoria.

Purpose

“The purpose of this Act is to regulate the raising and application of money and other benefits for non-commercial purposes from the public.”[1]

Regulated activity

‘fundraising appeal’[2] for the benefit of others in the public interest[3]

A fundraising appeal occurs if a person solicits or receives money or a benefit on the basis of a representation that the soliciting or receiving is not solely for the profit or commercial benefit of the person or any other person, cause or thing on whose behalf the person is soliciting or receiving the money or benefit. [Section 5(1)]

Without limiting the generality of the meaning of public interest, for the purposes of this Act a fundraising appeal is not conducted in the public interest if, in the opinion of the Court or the Director, as the case may be, the expenses payable in respect of the appeal in a particular period exceed a reasonable proportion of the total amount raised in that period. [Section 6B of the Act]

Interstate observation

Does a person “solicit” or “receive” in Vic if there is no other connection with NSW other than a web site based in another State able to be viewed in Vic? 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

fundraiser (including participants[4] in a fundraising appeal by the meaning of “conduct”).

Key operative provision

17A. Fundraisers must be registered

Subject to Division 1, a person must not conduct a fundraising appeal unless she or he is registered by the Director as a fundraiser.

Religious exception

A religious organisation[5] unless a commercial fundraiser is involved.[6]

Charity

‘Charity’ and ‘charitable purpose’ are not defined as the Act captures a broader range of fundraising.

Local presence (address) in Victoria of the fundraiser

The language of the Act goes further than other states, requiring more than just presence via an agent – “if the person is a natural person, her or his residential or principal business address in Victoria; … if the person is a corporation, the address in Victoria of its registered office or principal place of business.”[7] Additionally see the location requirement for accounts and records and place of inspection[8] of them by any person.

Separate bank account

Funds from appeals must be banked to a dedicated bank account (or a general bank account with ‘trust account type’ record keeping, with an account name that indicates that it contains fundraising appeal monies, only able to be drawn upon by cheque signed by at least 2 people.[9]

Limits on commercial fees

The expenses payable in respect of the appeal in a particular period exceed a reasonable proportion of the total amount raised.[10]

Surprising bits

  • Written consent of intended beneficiaries is required. “An application for registration as a fundraiser must be accompanied by— (a) the written consent to an intended appeal of each intended beneficiary of the appeal.”[11]
  • “The registered fundraiser must notify the Director in writing of the retention of the commercial fundraiser within 28 days after entering into the retention agreement with the commercial fundraiser.”[12]
  • From 4 May 2009, if a business represents that a portion of a “sale” is to be given away, before each sale contract is formed, written disclosure must be made of the percentage or dollar amount to be given away.[13]

Outdated / conflicting bits

  • There is no mention of fundraising over the internet, but national appeals are contemplated with records not needing to specifically identify Victoria activities.[14]
  • A bank account can only be drawn upon by cheque signed by at least 2 people?
  • “A person conducting a fundraising appeal must ensure that any records or accounts that the person is required to keep under this Part are stored at all times in Victoria at the address or the registered office or principal place of business of the person ….”[15]
    • Query: Where is the cloud?

You can find the Vic Register here

Patriotic funds

See the Veterans Act 2005 (Vic). I have not dealt with patriotic funds in this paper.

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References

  • [1] s1 of the Act
  • [2] s5 of the Act
  • [3] s19A(2)(c) of the Act
  • [4] s6 of the Act
  • [5] s16(1) again by reference to the Marriage Act
  • [6] s16B of the Act
  • [7] s18(2) of the Act
  • [8] s33(5) of the Act
  • [9] s27 of the Act
  • [10] s6B of the Act and other operative provisions
  • [11] s18A(1) of the Act
  • [12] s24A(2) of the Act
  • [13] s12A of the Act
  • [14] s29(2) of the Act
  • [15] s31(1) of the Act