On 25/05/2013,
you requested for the version in force on 25/05/2013
incorporating all amendments published on or before 25/05/2013.
The closest version currently available is that of 01/03/2011.
PART VIII
FUND-RAISING APPEALS
39.
—(1) In this Part and any regulations made for the purpose of this Part, unless the context otherwise requires —
“charitable contributions”, in relation to any representation made by any commercial participator or other person, means —
(a)
the whole or part of —
(i)
the consideration given for goods or services sold or supplied by him; or
(ii)
any proceeds (other than such consideration) of a promotional venture undertaken by him; or
(b)
sums given by him by way of donation in connection with the sale or supply of any such goods or services (whether the amount of such sums is determined by reference to the value of any such goods or services or otherwise);
“charitable institution” means a charity or an institution (other than a charity) which is established for charitable, benevolent or philanthropic purposes;
“collector”, in relation to a fund-raising appeal, means any person by whom that appeal is made (whether made by him alone or with others and whether made by him for remuneration or otherwise);
“commercial fund-raiser” means any person who for reward solicits or otherwise procures money or other property for, or purportedly for, the benefit of a charity or any charitable, benevolent or philanthropic purpose;
“commercial participator”, in relation to any charitable institution, means any person who carries on for gain a business other than a fund-raising business, but in the course of that business, engages in any promotional venture in the course of which it is represented that charitable contributions are to be given to or applied for the benefit of the institution;
“fund-raising appeal” means —
(a)
an appeal, whether made expressly or impliedly, to any member of the public to give money or other property (whether for consideration or otherwise) which is made in association with a representation that the whole or any part of its proceeds is to be applied for charitable, benevolent or philanthropic purposes; or
(b)
a receipt from any member of the public of any money or other property (whether for consideration or otherwise) which is given in whole or in part for any charitable, benevolent or philanthropic purposes;
“fund-raising business” means any business carried on for gain and wholly or primarily engaged in soliciting or otherwise procuring money or other property for charitable, benevolent or philanthropic purposes;
“proceeds”, in relation to a fund-raising appeal, means all money or other property given (whether for consideration or otherwise) in response to the fund-raising appeal in question;
[10/2007]
“promotional venture” means any advertising or sales campaign or any other venture undertaken for promotional purposes;
“represent” and “solicit” mean, respectively, represent and solicit in any manner whatever, whether expressly or impliedly and whether done —
(a)
by speaking directly to the person or persons to whom the representation or solicitation is addressed (whether or not in his or their presence); or
(b)
by means of a statement published in any newspaper, film or radio or television programme,
or otherwise, and references to a representation or solicitation shall be construed accordingly;
“services” includes facilities and, in particular —
(a)
access to any premises or event;
(b)
membership of any organisation;
(c)
the provision of advertising space; and
(d)
the provision of any financial facilities,
and references to the supply of services shall be construed accordingly.
(2) In this Part and any regulations made for the purpose of this Part —
(a)
any reference to charitable purposes, where occurring in the context of a reference to charitable, benevolent or philanthropic purposes, shall be a reference to charitable purposes whether or not the purposes are charitable within the meaning of any rule of law; and
(b)
any reference to soliciting or otherwise procuring money or other property is a reference to soliciting or otherwise procuring money or other property whether any consideration is, or is to be, given in return for the money or other property or not.
(3) Where —
(a)
any solicitation of money or other property for the benefit of a charitable institution is made in accordance with arrangements between any person and that institution; and
(b)
under those arrangements that person will be responsible for receiving on behalf of the institution money or other property given in response to the solicitation,
then (if he would not be so regarded apart from this subsection) that person shall be regarded for the purposes of this Part as soliciting money or other property for the benefit of the institution.
[Charities Act 1995 Ed., s. 39 (4) to (5)]
39A.
—(1) No person shall conduct or participate in any fund-raising appeal unless he is —
(a)
exempt from the provision of this section; or
(b)
a person to whom a permit has been granted by the Commissioner in accordance with regulations made for the purpose of this section.
[10/2007]
(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part thereof during which the offence continues after conviction.
[10/2007]
(3) The Minister, or such person as he may appoint, may exempt any person or class of persons from the provision of this section.
[10/2007]
[Charities Act 1995 Ed., s. 39 (1) to (3)]
39B.
—(1) Notwithstanding any exemption or permit granted under section 39A, the Commissioner may, at any time, by order published in the Gazette —
(a)
prohibit or stop the conduct of any fund-raising appeal by any charity or person; or
(b)
restrict the conduct of any fund-raising appeal by any charity or person by imposing conditions,
if he is satisfied —
(i)
that any fund-raising appeal conducted by the charity or person has not been conducted in good faith for charitable, benevolent or philanthropic purposes;
(ii)
that any of the persons who have conducted a fund-raising appeal, or any persons associated with any such appeal, are not fit and proper persons to administer, or to be associated with, a fund-raising appeal for charitable, benevolent or philanthropic purposes;
(iii)
that any fund-raising appeal has been improperly administered;
(iv)
that, in connection with any fund-raising appeal conducted, the provisions of this Act or the regulations or the conditions imposed by the Commissioner were not complied with by any person conducting or participating in the appeal; or
(v)
that, in the public interest, the fund-raising appeal should not be conducted.
[10/2007]
(2) Any person who conducts any fund-raising appeal in contravention of any order made by the Commissioner under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $50 for every day or part thereof during which the offence continues after conviction.
[10/2007]
[NSW CFA 1991, s. 31]
39C.
—(1) The Minister may make regulations for the purposes of this Part, including provisions —
(a)
regulating the conduct of commercial fund-raisers and commercial participators in relation to fund-raising appeals, and in particular —
(i)
prescribing the form and content of agreements between a charitable institution and commercial fund-raisers, commercial participators or any other persons conducting or participating in a fund-raising appeal for the benefit of the institution;
(ii)
providing for the refund of charitable contributions or cancellation of agreements or undertakings made by donors in response to a fund-raising appeal, where notice of the donor’s intention to cancel the agreement, undertaking or charitable contribution has been given to the relevant fund-raiser within a prescribed period;
(iii)
requiring commercial fund-raisers or commercial participators or other persons conducting or participating in a fund-raising appeal for the benefit of a charitable institution to make available to the institution books, documents or other records (however kept) which relate to the institution; and
(iv)
specifying the manner in which money or other property acquired by such commercial fund-raisers or commercial participators or other persons for the benefit of, or otherwise falling to be given to or applied by such persons for the benefit of, charitable institutions is to be transmitted to such institutions; and
(b)
regulating the raising of funds for charitable, benevolent or philanthropic purposes (whether by commercial fund-raisers or commercial participators or otherwise) or the conduct of fund-raising appeals, including provisions prohibiting persons under a prescribed age from acting as collectors and prohibiting others from causing them so to act and determining the remuneration of the collectors.
(2) In subsection (1)(a)(iv), the reference to money or other property includes a reference to money or other property which, in the case of a commercial fund-raiser or commercial participator, has been acquired by him otherwise than in accordance with an agreement with a charitable institution, but by reason of any solicitation or representation in consequence of which it has been acquired, is held by him on trust for such an institution.
40.
—(1) There shall be no judicial review in any court of any act done or decision made by the Minister or Commissioner under any regulations made for the purpose of section 39A except in regard to any question relating to compliance with any procedural requirement of the regulations governing that act or decision.
[10/2007]
(2) In this section, “judicial review” includes proceedings instituted by way of —
(a)
an application for a Mandatory Order, a Prohibiting Order or a Quashing Order;
(b)
an application for a declaration or an injunction; or
(c)
any other suit or action relating to or arising out of any act done or decision made in pursuance of any power conferred upon the Minister or Commissioner by any regulations made for the purpose of section 39A.
[42/2005; 10/2007]