Charitable Fundraising Act 1991 (NSW)

Charitable Fundraising Act 1991 No 69 An Act to regulate public fundraising for charitable purposes; to repeal the Charitable Collections Act 1934 and to amend certain other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Charitable Fundraising Act 1991. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects The objects of this Act are— (a) to promote proper and efficient management and administration of fundraising appeals for charitable purposes, and (b) to ensure proper keeping and auditing of accounts in connection with such appeals, and (c) to prevent deception of members of the public who desire to support worthy causes. 4 Definitions (1) In this Act— ACNC registered entity has the same meaning as registered entity has in the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth. annual return means a return lodged or required to be lodged under section 23. authorised officer means— (a) a person appointed as an authorised officer under section 25A, or (b) a person appointed as an investigator under section 18 of the Fair Trading Act 1987, or (c) a police officer authorised under section 25A to exercise the functions of an authorised officer. authority means an authority in force under Part 2. charitable purpose includes any benevolent, philanthropic or patriotic purpose. conducting a fundraising appeal is defined in section 6. Department means the Department of Customer Service. fundraising appeal is defined in section 5. organisation includes any board of trustees or other body of persons, whether incorporated or unincorporated. participating in a fundraising appeal is defined in section 6. public inquirer, in relation to a public inquiry, means the person appointed under Part 3A to conduct the public inquiry. public inquiry means a public inquiry under Part 3A. registered office of a person or organisation, or branch of an organisation, that conducts fundraising appeals pursuant to an authority means the address stated in the application form referred to in section 15. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes included in this Act do not form part of this Act. 5 Meaning of "fundraising appeal" (1) For the purposes of this Act, the soliciting or receiving by any person of any money, property or other benefit constitutes a fundraising appeal if, before or in the course of any such soliciting or receiving, the person represents— (a) that the purpose of that soliciting or receiving, or (b) that the purpose of an activity or enterprise of which that soliciting or receiving is a part, is or includes a charitable purpose. (2) It does not matter whether the money or benefit concerned is solicited or received— (a) in person or by other means (such as by post, telephone or electronic means), or (b) as a donation or otherwise (such as by participation in a lottery, art union or competition; by sponsorship in connection with a walkathon, telethon or other similar event; in connection with the supply of food, entertainment or other goods or services; or in connection with any other commercial undertaking). (3) The following do not, however, constitute a fundraising appeal for the purposes of this Act— (a) a request for, or the receipt of, an amount required in good faith as the fee for renewal of membership of an organisation, (b) an appeal by an organisation to (or the receipt of money or a benefit from) members of the organisation, (c) a request that any property be devised or bequeathed, or the giving of any information as to the means by which any property may be devised or bequeathed, (d) an appeal conducted exclusively or predominantly among persons sharing a common employer or place of work by one of those persons (being an appeal for a charitable purpose connected directly with another of those persons or any such other person's immediate family) and the receipt of money or a benefit from any such appeal, (e) an appeal to (or the receipt of money or a benefit from) any Commonwealth, State or local government authority, (f) anything prescribed by the regulations. 6 Meaning of "conducting" or "participating in" a fundraising appeal (1) For the purposes of this Act, a person conducts a fundraising appeal if the person organises the appeal, whether alone or with others, whether in person or by an agent or employee and whether on the person's own behalf or as an officer or member of the governing body of an organisation. (2) For the purposes of this Act, a person participates in a fundraising appeal if the person solicits or receives any money, property or other benefit in the course of the appeal, or assists in organising the appeal. (3) For the purposes of this Act, a person who participates in a fundraising appeal does not conduct the appeal if the person participates in it solely as the agent, employee or collector (whether voluntary or not) of or for another person who is conducting the appeal. (4) For the purposes of this Act, a person does not participate in an appeal merely because the person gives any money or benefit in the course of the appeal. 7 Religious organisations exempt from Act (1) This Act (apart from section 48) does not apply to— (a) a religious body or a religious organisation in respect of which a proclamation is in force under section 26 of the Marriage Act 1961 of the Commonwealth or a religious body, or an organisation or office, within a denomination in respect of which such a proclamation is in force, or (b) a religious body or religious organisation prescribed by the regulations, or (c) any body or organisation that is certified in writing by the principal or executive officer of a body or organisation referred to in paragraph (a) or (b) to be affiliated with and approved by the organisation or body so referred to, or (d) a member or employee of a body or organisation referred to in paragraph (a), (b) or (c), or any other person, who is acting with its authority. (2) The Minister may, by order published in the Gazette, declare that, despite subsection (1), this Act and the regulations apply (or apply to the extent specified in the order) to a person, body or organisation specified in the order, and such an order has effect accordingly. (3) By way of example of the power conferred by subsection (2), an order under that subsection may apply the provisions of Part 3 to a person, body or organisation that has failed to give a satisfactory reply to a request by the Minister for information concerning any fundraising appeal conducted by the person, body or organisation. 8 Crown bound by this Act This Act binds the Crown not only in right of New South Wales but also, in so far as the legislative power of Parliament permits, in all its other capacities. Part 2 Fundraising appeals Division 1 Offences 9 Conducting unlawful fundraising (1) A person must not conduct a fundraising appeal unless the person— (a) is the holder of an authority authorising the person to conduct the appeal, or (b) 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, or (c) is authorised under subsection (2) to conduct the appeal without an authority. Maximum penalty—200 penalty units. (2) The following may conduct a fundraising appeal without being the holder of an authority— (a) an organisation or person, or one of a class of organisations or persons, authorised by the regulations, (b) an organisation established by an Act and subject to the control and direction of a Minister, (c) a member, employee or agent of any organisation or other person referred to in paragraph (a) or (b) who is authorised by the organisation or other person to conduct the appeal, (d) a person who, in accordance with section 11, conducts the appeal in conjunction with the holder of an authority. 10 Participating in unlawful fundraising (1) A person must not participate in a fundraising appeal which the person knows is being conducted unlawfully. Maximum penalty—50 penalty units. (2) For the purposes of this section, a fundraising appeal is being conducted unlawfully if it is being conducted— (a) by a person in contravention of section 9, or (b) contrary to a condition of an authority. 11 Appeals conducted by persons engaged in business or otherwise deriving benefit (1) A person (in this section called the trader) must not conduct a fundraising appeal— (a) in connection with the supply of goods or services in the course of any trade or business carried on by the person, or (b) otherwise partly for the person's benefit, except in accordance with this section. Maximum penalty—200 penalty units. (2) Such an appeal must be conducted in accordance with the following conditions— (a) the appeal must be conducted jointly by the trader and a person or organisation that holds an authority to conduct the appeal, (a1) the trader and the person or organisation that holds the authority to conduct the appeal must enter into a written agreement that complies with any requirements specified in the regulations regarding the conduct of the appeal, (b) any advertisement, notice or information concerning the appeal must identify the trader and the holder of the authority, (c) any such advertisement, notice or information must give details (to the extent required by the conditions of the authority) of the intended distribution of funds raised in the appeal or of any guaranteed minimum payment, or proportion of profits, to be paid by the trader to any person or organisation as a result of the appeal. (2A) The regulations may make provision for or with respect to the following matters— (a) written agreements between traders and persons or organisations that hold authorities to conduct appeals, including matters that must be included in the written agreements, (b) matters that must be publicly disclosed by a trader when conducting an appeal in accordance with this section. (3) Nothing in this section affects the Secretary's discretionary power to attach any other condition to an authority. 12 Advertising unlawful appeals (1) A person who publishes any advertisement, notice or information relating to any fundraising appeal which the person knows, or could reasonably be expected to know, is being conducted unlawfully is guilty of an offence. Maximum penalty—200 penalty units. (2) In this section, publishing includes— (a) causing to be published, and (b) publishing by spoken words, whether directly or through any electronic medium, and (c) transmitting by other electronic means. 13 False representations in conduct of fundraising appeal (1) (Repealed) (2) A person— (a) who is conducting or is proposing to conduct a fundraising appeal, or (b) who is acting on behalf of a person who is conducting or is proposing to conduct a fundraising appeal, must not represent to an employee, agent or collector (whether voluntary or not) that any thing required or permitted by this Act to be done, or any condition precedent to a fundraising appeal to be complied with, has been done or complied with when in fact it has not. Maximum penalty—200 penalty units or imprisonment for 12 months, or both. Division 2 Authority to conduct fundraising appeals 13A Application to authorities of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant authorities for the purposes of this Act. (2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of an authority, subject to the modifications and limitations prescribed by or under this Act. (3) For the purpose of applying Part 2 of the applied Act to an authority— (a) the authority may be amended under that Act, and (b) the reference to 14 days in section 14 (3) of that Act (as to the period within which further information must be provided) is to be read as a reference to 3 months, and (c) (Repealed) (d) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 28 days. (4) Subject to this section, the regulations may make provision for or with respect to such matters concerning an authority as are relevant to the operation of Part 2 of the applied Act. 14 Special applications (1) (Repealed) (2) Persons or organisations may combine to make one application for an authority if each such person or organisation is separately identified in the application. (3) An application may relate to a particular appeal or appeals or to appeals generally. (4) An application made by an organisation may request that the authority issued in pursuance of the application authorise the conduct of fundraising appeals by members of specified branches of the organisation. (5) An authority may be issued in terms requested under subsection (4) if the Secretary is satisfied that each of the branches concerned is responsible to, and is under the direction and control of, the governing body of the applicant organisation. In such a case, the governing body of each branch is taken, for the purposes of this Act, to be the holder of the authority. 15 Application to nominate registered office (1) (Repealed) (2) An application for an authority is to require the applicant to state in the application an address to which any notices or other documents can be forwarded for the purposes of this Act. The address so stated is, for the purposes of this Act, the registered office of the applicant. (3) If the authority is to authorise the conducting of one or more fundraising appeals by branches of an organisation, the form of application must require an address to be stated for each such branch. In such a case, each such branch is taken, for the purposes of this Act, to have its registered office at the address specified in respect of it, and any requirement of this Act in relation to the registered office of the holder of an authority applies accordingly. 16 Dealing with applications (1) The Secretary may grant an authority only if— (a) the Secretary is satisfied that all the persons proposing to conduct the appeal, and all the persons associated with the proposed appeal, are fit and proper persons to administer, or to be associated with, a fundraising appeal for charitable purposes, or (b) the applicant is an ACNC registered entity. (2) The Secretary may refuse an application for an authority if the Secretary is not satisfied as to any one or more of the following matters— (a) that the proposed appeal will be conducted in good faith for charitable purposes, (b) (Repealed) (c) that the proposed appeal will be administered in a proper manner, (d) that the grant of an authority would not facilitate the contravention of any Act, (e) that the applicant can and will ensure that persons conducting or participating in the proposed appeal will comply with the provisions of this Act and the regulations and the conditions of the authority, (f) that the applicant has furnished all the information required to be furnished in relation to the proposed appeal, (g) that, having regard to the purposes and activities, or likely activities, of the applicant, names, designations or titles proposed to be used in connection with the proposed appeal are appropriate and not misleading, (h) that it is in the public interest to grant the authority, (i) any other matter prescribed by the regulations. (3), (4) (Repealed) (5) Without limiting the circumstances in which a person may be found not to be a fit and proper person for the purposes of this section, the regulations may specify circumstances in which a person is not a fit and proper person. (6), (7) (Repealed) 17 Right conferred by authority An authority may be granted so as to authorise a single fundraising appeal or a specified number of such appeals or an indefinite number of such appeals. 18 Duration of authority (1) An authority has effect for the term specified in the authority (not exceeding 5 years) unless it is sooner cancelled. (2) The suspension of an authority does not affect the term of the authority. (3) This section does not affect the term of any authority granted under this Act and in force immediately before the insertion of this section by the Charitable Fundraising Amendment Act 2018. 18A Renewal of authority (1) An authority may be renewed on application to the Secretary made before or within 3 months after the expiry of the authority. (2) Subject to this section, this Act applies to an application for the renewal of an authority in the same way as it applies to an application for an authority. (3) The Secretary may refuse an application to renew an authority if the Secretary is satisfied of either or both of the following— (a) that the applicant has not complied with the requirements of this Act or the regulations, (b) that the applicant has failed to comply with a condition of the authority that is to be renewed. (4) If an application to renew an authority is made within the period of 3 months after the expiry of the authority, the original authority is taken to have remained in force, and to remain in force, until the determination of that application. 19 Conditions of authority (1) An authority may be granted unconditionally or subject to conditions and is subject to any conditions imposed by the regulations. (2) The Secretary may, by notice in writing given to the holder of an authority, impose a condition on the authority or amend or revoke a condition of the authority (other than a condition imposed by the regulations). (3) The regulations may provide that a contravention of a specified condition is an offence punishable by a penalty not exceeding 50 penalty units. 19A Suspension or cancellation of authority (1) The Secretary may suspend or cancel an authority on the following grounds— (a) the holder of the authority has not complied with the requirements of this Act or the regulations, (b) the holder of the authority has failed to comply with a condition of the authority, (c) in the opinion of the Secretary, any person who has conducted a fundraising appeal under the authority, or any person associated with any such appeal, is not a fit and proper person to administer, or to be associated with, a fundraising appeal for charitable purposes, (d) the holder of the authority made a statement or provided information to the Secretary or an authorised officer that was false or misleading in a material particular, (e) the holder of the authority is bankrupt, in liquidation or under external administration, (f) the holder of the authority gives the Secretary a written request for the suspension or cancellation, (g) other grounds prescribed by the regulations for the purposes of this subsection. (2) The regulations may make provision for or with respect to the following— (a) procedures relating to the proposed suspension or cancellation of an authority, (b) reviews of or appeals against the suspension or cancellation of an authority. Division 3 Application of funds raised 20 Proceeds of appeal (1) Any money or benefit received in the course of a fundraising appeal conducted by the holder of an authority is to be applied according to the objects or purposes represented by or on behalf of the persons conducting the appeal as the purposes or objects of the appeal. (2) Subsection (1) does not operate— (a) so as to prevent the deduction of lawful and proper expenses in accordance with the authority under which the appeal is conducted, or (b) so as to prejudice the operation of the Dormant Funds Act 1942 or of any Act or other law relating to the cy-pres application or other application of trust money. (3) The regulations may specify, or make provision for or with respect to the determination (by the decision of the Minister or otherwise) of, what constitutes a lawful and proper expense in connection with particular fundraising appeals or any class or description of fundraising appeals or fundraising appeals generally. (4) Any relevant Act or other law relating to the cy-pres application or other application of trust money applies to any money (not being trust money) that is subject to subsection (1). (5) Money or any benefit received in the course of a fundraising appeal may be applied outside New South Wales, except to the extent that— (a) to apply it in that way would contravene subsection (1) or any other law, or (b) the Minister, having regard to the public interest, prohibits the application of any such money or benefit by a condition of an authority authorising the appeal concerned. (6) Any money received in the course of a fundraising appeal, before the deduction of any expenses, is to be paid immediately into an account held by the holder of the authority concerned at an authorised deposit-taking institution. (7) A person conducting a fundraising appeal, or any member of the governing body of an organisation on whose behalf such an appeal is conducted, who— (a) by act or omission is in any way directly or indirectly concerned in or party to a contravention of this section, or (b) aids, abets, counsels or procures a contravention, is guilty of an offence. Maximum penalty—200 penalty units or imprisonment for 2 years, or both. (8) A person convicted of an offence under this section in connection with a fundraising appeal conducted on behalf of an organisation is, in addition to any liability for the offence, liable to the organisation for the loss incurred by the organisation as a result of the offence. (9) An amount for which a person is liable under subsection (8) may be recovered by the organisation concerned as a debt in any court of competent jurisdiction. (10) The regulations may make provision for or with respect to the following— (a) the identification of payments into and out of accounts and the fundraising appeals that the payments relate to, (b) controls on expenditure, including expenditure on administration costs and the engagement of agents, employees or collectors, (c) the giving of receipts, (d) other matters relating to dealing with money or benefits received in the course of a fundraising appeal. 21 Investment (1) Money received in the course of a fundraising appeal which is not immediately required to be applied to the purposes or objects of the appeal may be invested only in a manner for the time being authorised by law for the investment of trust funds. (2) This section is subject to the provisions of Part 6 of the Government Sector Finance Act 2018 or any other Act which confers special powers of investment on the person or organisation concerned. Division 4 Requirements to be met by fundraisers 22 Keeping of records (1) A person or organisation that conducts or has conducted a fundraising appeal must keep, in accordance with this section, records of income and expenditure in relation to each such appeal. (2) The records must be kept and maintained in the manner, and for the period, specified in the regulations. (2A) The regulations may make provision for or with respect to the auditing of the records. (3) A person or organisation that contravenes this section is guilty of an offence. In the case of an unincorporated organisation, every trustee or other person who, at the time of the offence, was a member of the governing body of the organisation is guilty of an offence if the trustee or person knowingly authorised or permitted the contravention. Maximum penalty—50 penalty units. 23 Annual returns (1) Within the period of 6 months after the end of each financial year, the holder of an authority is to lodge with the Secretary an annual return that— (a) is in a form approved by the Secretary, and (b) contains a statement that the return is true and correct, and (c) includes the information that is required by the regulations, and (d) is accompanied by the documents that are prescribed by the regulations (if any). Maximum penalty—50 penalty units. (2) If the holder of an authority that contravenes subsection (1) is an unincorporated organisation, each trustee or other person who, at the time of the contravention, was a member of the governing body of the organisation is also guilty of the offence if the trustee or person knowingly authorised or permitted the contravention. (3) For the avoidance of doubt, an annual return must be lodged even if, during the financial year concerned— (a) no money, property or other benefits were received by the holder of the authority, or (b) no fundraising appeal was conducted by the holder of the authority. (4) The Secretary may, by order in writing, exempt a person or organisation or class of persons or organisations, either unconditionally or subject to conditions, from compliance with a provision of this section. (5) The holder of an authority must not lodge an annual return that is false or misleading in a material particular. Maximum penalty—200 penalty units. (6) In this section, financial year means— (a) in the case of a corporation—the financial year of the corporation fixed in its constituting document (if any), and (b) in any other case—the year ending on 30 June. 24 Audit (1) The accounts of any person or organisation that for the time being holds an authority to conduct a fundraising appeal, in so far as those accounts relate to receipts and expenditure in connection with any such appeals, must be audited annually in accordance with the regulations. (2), (3) (Repealed) (4) A person or organisation that fails to have accounts audited as required by this section is guilty of an offence. In the case of an unincorporated organisation, every trustee or other person who, at the time of offence, was a member of the governing body of the organisation is guilty of an offence. Maximum penalty—50 penalty units. (5) The requirements of this section are in addition to the requirements of any other law (including the Corporations Act 2001 of the Commonwealth). (6) The whole or any part of a report prepared for the purposes of this section in respect of a corporation may be included in an auditor's report prepared for the purposes of the Corporations Act 2001 of the Commonwealth or any other law in respect of the corporation. (7) Nothing in subsection (6) is intended to provide for the inclusion of any matter in an auditor's report for the purposes of the Corporations Act 2001 of the Commonwealth or any other law of the Commonwealth if the inclusion of that matter would be contrary to the provisions of that Act or law. 24A Authority holders to notify Secretary of certain matters (1) A holder of an authority must notify the Secretary in the approved form if any of the following circumstances exist— (a) the holder's name has changed, (b) the holder's address has changed, (c) the charitable purpose for which the appeal is being or is to be conducted has changed, (d) if the authority was granted under section 16 (1) (b)—the registration of the holder as an ACNC registered entity has been revoked, (e) the holder becomes aware that information or a document provided in an annual return under section 23 was misleading or deceptive in a material particular, (f) if the holder is a natural person—the person becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with the person's creditors or makes an assignment of the person's remuneration for the creditors' benefit, (g) if the holder is an unincorporated association—a trustee or other person who is a member of the governing body of the organisation becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with the person's creditors or makes an assignment of the person's remuneration for the creditors' benefit, (h) if the holder is a corporation—the corporation becomes insolvent, is placed in liquidation or under external administration or is wound up, (i) a person who is the holder, or a member of the governing body of the holder, is convicted of an offence involving fraud or dishonesty for which the maximum penalty on conviction is imprisonment for not less than 3 months, (j) any other circumstances specified by the regulations. (2) The notification must be given— (a) as soon as practicable, and (b) no later than 28 days after the person or organisation first becomes aware of the circumstances mentioned in subsection (1). (3) To avoid doubt, 2 or more notifications may be included in the same document. (4) A person or organisation that contravenes this section is guilty of an offence. In the case of an unincorporated organisation, each trustee or other person who, at the time of the contravention, was a member of the governing body of the organisation is guilty of an offence if the trustee or person knowingly authorised or permitted the commission of the contravention. Maximum penalty—200 penalty units. 24B Authority holders to give written statements regarding compliance with legislation (1) Within 6 months after the end of each financial year, the holder of an authority is to give a written statement in accordance with this section that the holder has, during that financial year, taken reasonable steps to ensure the holder has complied with the following— (a) this Act, (b) the regulations, (c) the conditions of the authority. (2) The statement— (a) is to be in a form approved by the Secretary, and (b) subject to subsections (3) and (4), is to be included in the holder's annual return. (3) If the holder of an authority is an ACNC registered entity, the statement is instead to be included in the annual information statement the holder gives to the Commissioner of the Australian Charities and Not-for-profits Commission under the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth. (4) If the holder of an authority is no