Exclusions and Exemptions from Fundraising Regulation. All jurisdictions (except the Northern Territory) require licence
Exclusions and Exemptions from Fundraising Regulation All jurisdictions (except the Northern Territory) require licences, permits, authorities, registration or sanctions in order to commence fundraising, and they have differing and complicated exclusion and exemption provisions. To some extent the exclusions and exemptions depend on the ‘activity’ which is specified to trigger the need for licensing or compliance with the provisions. Finding patterns of exemptions across the jurisdictions is as challenging as divining the fundamental definitional starting points in fundraising legislation. What are the minor activity exemptions? A category can be made around fundraising which is properly seen as minor in nature or private family or domestic matters. South Australia (SA) exempts appeals kept within family or close associates and Victoria (Vic) exempts appeals such as requesting donations rather than funeral wreaths. It is surprising that the approach taken in the Australian Capital Territory (ACT) has not recommended itself more widely. There, a tiered activity test applies as one of its exemptions. Fundraising under $15,000 per year is exempt from the provisions of the Charitable Collections Act 2003 (ACT).
What are the non-public internal fundraising exemptions? Where fundraising takes place largely within a community of interest such as a workplace, common employer, association, trade union, employer association, and schools, some jurisdictions have provided exemptions. Membership fees also fall within this classification.
Regulation to avoid unintended consequences Some exemptions may be rationalised on the basis that they are specifically applied where a wide fundamental definition of fundraising was used in the legislation and it was not intended to extend to certain activities. Others may be enacted out of an abundance of caution to ensure that there are no unintended consequences. For example the ACT exempts trustee companies and New South Wales (NSW) the trustees of local government council trusts. What is excluded because it is regulated under other statutory provisions? It could be argued that organisations such as government schools and their councils, universities and TAFEs, political parties, licensed gaming clubs, trustee companies and various organs of local, state or federal government are regulated already and do not require this overlapping regulation. Whether in fact there is similar regulatory supervision is difficult to establish for each of these exemptions.
In recent years, government and government hybrid agencies at all levels are encroaching upon activities that would have once been considered nonprofit organisations’ space,. For example, increasingly we see government operated natural disaster appeals; appeals by public hospitals and medical research facilities; corporate sponsorship arrangements by government hybrid agencies; and government-owned utility corporations seeking donations for public services such as helicopter rescue and other public benefit activities. This phenomenon may lead to concerns about competitive neutrality (level playing field).
Page |2 What about religion? Religious organisations are specifically exempt in NSW, Victoria, Queensland, and Tasmania. Western Australia (WA) and SA do not exempt religious organisations, and licensing requirements in those States will depend on whether the religious organisation is collecting money for charitable purposes outside the religious sphere. There are no specified exemptions for religious organisations in the ACT.
Section 7 of the Charitable Fundraising Act 1991 (NSW) exempts religious organisations, defining these as religious bodies or organisations which are proclaimed under section 26 of the Marriage Act 1961 (Cth), or prescribed by the Marriage Regulations 1963 (Cth). The proclamation in force under section 26 of the Marriage Act is the Marriage (Recognised Denominations) Proclamation 2007 (Cth). Schedule 1 of the Proclamation lists 133 denominations recognised for the purposes of solemnization of marriage in Australia. In addition, the Charitable Fundraising Regulation 2008 (NSW) lists 32 other religious bodies exempted from the operation of the Act (reg. 6). 1
2
The Victorian and Queensland Acts also use the Marriage (Recognised Denominations) Proclamation 2007 (Cth) to exempt religious organisations. What about market-based fees and charges? Fundraising legislation seeks to exclude market-based transactions where there is only a minor element of philanthropic intent in the transaction. For example, in NSW, where a health or child minding service charges a genuine fee for service, this is not classed as fundraising. 3
However, a corporate sponsorship is usually caught by the legislation, e.g. in
4
Queensland and NSW approval provisions apply to such relationships. They are explicitly excluded in the ACT.
What are some stand-alone exemptions? There are some other isolated exemptions in various jurisdictions including: Kindergartens and child minding Nursing or medical/health services Other welfare services Company sponsorships Bequests
1
Fundraising Act 1998 (Vic) s 3. Collections Act 1966 (Qld) sub-ss 6(2), (3). Ibid s 12. 4 Charitable Fundraising Act 1991 (NSW) s 11. 2 3
Page |3 Fundraising legislation in Australia – exclusions and exemptions NSW* Fundraising appeals by local government Fundraising appeals by state government Fundraising appeals by Commonwealth government Trustees of local govt council trusts Common employer / place of work Company sponsorships Trustee companies Family / close associates Funeral flowers (in lieu of) Membership fees Commercial fee for service Nonprofit organisation internal soliciting Nonprofit gaming Licensed clubs Supported employment for the disabled Nursing or medical/health services
Other welfare services Non-government aid organisations accredited with AUSAID Trade unions / associations Employer associations
Religious organisations / purposes Political parties Universities
TAFE
Government schools School councils, parents associations / school fees Kindergartens / child minding 5
VIC*
QLD*
SA*5
WA*
TAS*
ACT*
s 5(3)(e); reg 7
s 4(e)
s 7(3)(f)
s 5(3)(e)
s 4(e)
s 7(3)(f)
s 5(3)(e)
s 4(e)
s 7(3)(f)
reg 7 s 5(3)(d)
s 7(3)(e) s 7(3)(h); reg 6(1)(e) s 7(3)(h); reg 6(1)(f) s 6(2)(a) reg 6(a)
s 5(3)(a)
s 4(a)
s 7(3)(c)
s 4(f) s 5(3)(b) reg 4(c) (genuine fees or charges for services only) reg 4(d) (genuine fees or charges for service only) reg 4(e) (genuine fees or charges for service only)
s 4(b) s 4 (g) s 4(c)
s 7(3)(d) s 7(3) (a)
s 16(c)
s 7(3)(h); reg 6(1)(d) s 16(f), (g)
s 7(1); reg 6 reg 8 reg 4(a) (genuine fees or charges for service only) reg 4(a) (genuine fees or charges for service only) reg 4(a) (genuine fees or charges for service only) reg 4(b) (genuine fees or
s 16(d) s 16(e) s 16(b)
s 6(2)
Generally exempt. No specific section reference; exemption depends on interpretation.
ss 4(d), 4(j); reg 4
s 16(b)
s 16(a)
s 16(a)
s 7(3)(h); reg 6(1)(a)
s 16(ba)
Section 18 of the Collections for Charitable Purposes Act 1939 (SA) provides for exemptions to the Act, but it has never been exercised by the Minister. Organisations not collecting for a charitable purpose as defined do not require a licence under the Act. Office of the Gaming and Liquor Commissioner give examples: religious organisations, environmental organisations, and educational institutions. However, there are no formal exemptions.
Page |4 NSW*
Bequests Annual collections under $15000 Organisations incorporated within the State
VIC*
QLD*
SA*5
WA*
charges for service only) s 5(3)(c)
Charitable Fundraising Act 1991 Charitable Collections Act 2003 Fundraising Act 1998 Charitable Collections Act 1946 Collections for Charities Act 2001 Collections Act 1966 Collections for Charitable Purposes Act 1939
ACT*
s 7(3)(b) s 7(3)(h); reg 6(1)(c) ss 6(1), 5(2), 3(2)
*RELEVANT LEGISLATION NSW ACT VIC WA TAS QLD SA
TAS*
Charitable Fundraising Regulation 2008 Charitable Collections Regulation 2003 Fundraising Regulations 2009 Charitable Collections Regulations 1947 Collections for Charities Regulations 2001 Collections Regulation 2008
