Collections for Charities Act 2001

Collections for Charities Act 2001

An Act to regulate the collection of donations for charities and for other purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Collections for Charities Act 2001 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

administrator means a person appointed by a magistrate to perform the functions specified in section 16 ;

[Section 3 Subsection (1) amended by No. 41 of 2010, s. 6, Applied:01 Jan 2011]

charitable purpose includes a benevolent, philanthropic or patriotic purpose and any purpose for the protection of the environment or the welfare of animals;

[Section 3 Subsection (1) amended by No. 16 of 2006, s. 6, Applied:01 Nov 2006] Commissioner means the Commissioner for Corporate Affairs holding office under section 4 of the Commissioner for Corporate Affairs Act 1980 , and includes any person holding that office in an acting capacity;

contravene includes fail to comply with;

[Section 3 Subsection (1) amended by No. 17 of 1996, Applied:24 Jan 2002] [Section 3 Subsection (1) amended by No. 16 of 2006, s. 6, Applied:01 Nov 2006]

donation includes money, goods or services, donated or bequeathed;

magistrate means a magistrate sitting in the small claims division of the Magistrates Court established under the Magistrates Court (Small Claims Division) Act 1989 ;

organisation means a group of persons or bodies formed for the purpose of achieving a common goal;

person includes an organisation and an association;

principal office means the primary place where the business of an organisation is conducted and where the officers of the organisation are ordinarily located or can be contacted;

regulations means regulations made and in force under this Act;

solicit means to seek a donation by a request communicated in person or –

(a) by mail; or

(b) by facsimile transmission; or

(c) by telephone; or

(d) by e-mail; or

(e) by the internet; or

(f) by a document left on premises; or

(g) by any appeal through the media;

sunset means –

(a) in January, November and December in any year, 8 p.m. Australian Eastern Standard Time; or

(b) in February, March, April, September and October in any year, 7 p.m. Australian Eastern Standard Time; or

(c) in May, June, July and August in any year, 5 p.m. Australian Eastern Standard Time.

(2)  An approved statute is taken to be any statute specified in the regulations as an approved statute for the purposes of this Act and includes the following:[Section 3 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:01 Oct 2001]

Associations Incorporation Act 1964 of Tasmania;

Associations Incorporation Act 1981 of Queensland;

Associations Incorporation Act 1981 of Victoria;

Associations Incorporation Act 1984 of New South Wales;

Associations Incorporation Act 1985 of South Australia;

Associations Incorporation Act 1987 of Western Australia;

Associations Incorporation Act 1991 of the Australian Capital Territory;

Associations Incorporation Act of the Northern Territory;

Corporations Act.

(3)  A relevant Act is taken to be any Act specified in the regulations as a relevant Act for the purposes of this Act and includes the following:

Charitable Collections Act 1946 of Western Australia;

Charitable Fundraising Act 1991 of New South Wales;

Collections Act 1966 of Queensland;

Collections Act 1959 of the Australian Capital Territory;

Collections for Charitable Purposes Act 1939 of South Australia;

Fundraising Appeals Act 1998 of Victoria.

(4)  A provision of this Act which restricts or prohibits any action by an organisation is taken to impose the same restriction or prohibition on the actions of any person, whether acting on behalf of the organisation or on his or her own behalf.

4.   Application of Act

This Act applies to any soliciting for charitable purposes unless the soliciting is –

(a) a request for the renewal of membership; or

(b) an appeal by an organisation to its members; or

(c) an appeal within premises that are used by a club; or

(d) an appeal within premises that are used by a religious organisation; or

(e) an appeal to a Commonwealth, State or local authority; or

(f) for the sale of goods or services; or

(g) for a raffle; or

(h) soliciting for an activity to which the Gaming Control Act 1993 applies; or

(i) for a prescribed organisation or an organisation of a prescribed class; or

(j) soliciting of a type authorised by the regulations.

5.   Permissible soliciting

(1)  A person must not solicit for a charitable purpose unless –

(a) [Section 5 Subsection (1) amended by No. 16 of 2006, s. 7, Applied:01 Nov 2006] that soliciting is on behalf of an organisation which complies with subsection (2) or holds an authority in writing granted by the Commissioner for a specified period; or

(b) [Section 5 Subsection (1) amended by No. 16 of 2006, s. 7, Applied:01 Nov 2006] that soliciting is by a person by virtue of an authority in writing granted by the Commissioner for a specified period.

Penalty:  Fine not exceeding 50 penalty units.

(2)  An organisation must not solicit for a charitable purpose unless it is –

(a) an incorporated association or a corporation under an approved statute in the State or Territory in which the principal office of that organisation is located; or

(b) an organisation that is approved by the Governor by an order-in-Council for the purposes of this Act or a member of a class of organisation that is so approved; or

(c) [Section 5 Subsection (2) amended by No. 16 of 2006, s. 7, Applied:01 Nov 2006] an organisation that is approved by the Commissioner in writing for a specified period.

6.   Approval of organisations for soliciting

(1)  [Section 6 Subsection (1) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] Where an organisation is an incorporated association in a State or Territory other than Tasmania or is a corporation whose principal office is located in a State or Territory other than Tasmania, that organisation must not solicit for any charitable purpose unless the organisation is first approved by the Commissioner.

Penalty:  Fine not exceeding 50 penalty units.

(2)  [Section 6 Subsection (2) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] The Commissioner may –

(a) impose conditions on an approval under this section; and

(b) revoke an approval.

(3)  A condition imposed on an approval may –

(a) apply to organisations generally, a particular organisation or a class of organisations; and

(b) provide that the approval is for a limited period or for a certain event.

(4)  [Section 6 Subsection (4) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] The Commissioner may revoke an approval if satisfied that –

(a) an offence has, or may have, been committed or is likely to be committed; or

(b) [Section 6 Subsection (4) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] an investigation is being, or is to be, conducted into the organisation and the Commissioner considers it appropriate to revoke the approval; or

(c) a condition of the approval has not been met; or

(d) the period or event for which the approval was granted has passed.

(5)  [Section 6 Subsection (5) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] If the Commissioner revokes an approval, he or she may determine a period within which the organisation is not to seek a further approval.

(6)  [Section 6 Subsection (6) amended by No. 16 of 2006, s. 8, Applied:01 Nov 2006] On the revocation of an approval, the Commissioner is to notify the organisation of –

(a) the revocation and the reasons for it; and

(b) any period determined under subsection (5) .

7.   Requirement for licence or authority in another jurisdiction

An organisation must not solicit for a charitable purpose if, arising from any activity in any other State or a Territory, including soliciting for charitable purposes, that organisation is required to hold a licence or other authority under one or more relevant Acts and that licence or authority is not in force.

Penalty:  Fine not exceeding 50 penalty units.

8.   Adult supervision of minors

An organisation must not permit a person under the age of 16 years to solicit for a charitable purpose unless –

(a) that person is under the supervision of an adult person; and

(b) in the case of a person under the age of 12 years, that person is also under the immediate control of an adult person.

Penalty:  Fine not exceeding 10 penalty units.

9.   Times permitted for soliciting

(1)  A person must not, by telephone, solicit for a charitable purpose at any residential premises before 9 a.m. or after 8 p.m. on any day.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not, in person, solicit for a charitable purpose at any residential premises before 9 a.m. or after 8 p.m. or sunset, whichever is the earlier, on any day.

Penalty:  Fine not exceeding 20 penalty units.

10.   Disclosure of information

(1)  A person must not by request in person solicit for any charitable purpose unless the soliciting is in a public place or unless he or she states –

(a) the name of the organisation that he or she represents; and

(b) the purpose for which the donation is sought; and

(c) any other information required by the regulations.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a period not exceeding 3 months.

(2)  A person must not by request in person solicit for any charitable purpose unless he or she displays an identity card indicating –

(a) the name of the person; and

(b) the name of the organisation that he or she represents; and

(c) the State or Territory in which the principal office of that organisation is located; and

(d) any other information required by the regulations.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a period not exceeding 3 months.

(3)  A person must not by request by telephone solicit for any charitable purpose, unless he or she states –

(a) his or her name; and

(b) the name of the organisation that he or she represents; and

(c) the State or Territory in which the principal office of that association is located; and

(d) any other information required by the regulations.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a period not exceeding 3 months.

(4)  An organisation must not, by request in writing (whether or not that request is to a particular person) or through any electronic media or in an advertisement, solicit for a charitable purpose unless he or she discloses in that writing, electronic media or advertisement –

(a) a statement of the purpose for which the donation is sought; and

(b) the name of the organisation; and

(c) the address of the principal office of the organisation; and

(d) a contact telephone number for the organisation; and

(e) any other information required by the regulations.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a period not exceeding 3 months.

11.   Duty of organisations

An organisation must not permit any of its officers, agents or employees to engage in any activity which contravenes a provision of this Act.

Penalty:  Fine not exceeding 50 penalty units.

12.   False or misleading statements or conduct

(1)  A person must not, in soliciting for any charitable purpose, by any misleading or deceptive statement, representation or promise –

(a) falsely represent the purpose for which the money or benefit is sought; or

(b) represent that the person has a sponsorship, approval or affiliation that he or she does not have.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a period not exceeding 6 months.

(2)  A person must not, in soliciting for any charitable purpose, engage in any conduct that is misleading or deceptive or is likely to mislead or deceive.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a period not exceeding 6 months.

13.   Excessive benefit

(1)  An organisation must not permit an agent, contractor, officer or employee of that organisation to receive any benefit which is manifestly excessive if that benefit in whole or in part is derived from funds obtained by donation.

Penalty:  Fine not exceeding 100 penalty units.

(2)  In determining whether a benefit is manifestly excessive, a court must have regard to –

(a) the purpose of the organisation; and

(b) the income of the organisation; and

(c) the roles of the agents, officers or employees of the organisation; and

(d) the expenses incurred in the management of the organisation compared with –

(i) the purpose of comparable organisations; and

(ii) the income of comparable organisations; and

(iii) the roles of the agents, officers or employees of comparable organisations; and

(iv) the expenses incurred in the management of comparable organisations; and

(e) any other matter that the court considers relevant.

14.   Application of donations for inappropriate purpose

An organisation must not permit any donation given for any charitable purpose to be used for any purpose other than the purpose for which it was obtained except for –

(a) reasonable expenses incurred in the administration of the organisation; or

(b) reasonable payments to agents, contractors, officers or employees of that organisation for expenses incurred in its administration.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a period not exceeding 6 months.

15.   Prohibition of soliciting

(1)  [Section 15 Subsection (1) amended by No. 16 of 2006, s. 9, Applied:01 Nov 2006] On application by the Commissioner, a magistrate may make an order prohibiting an organisation from soliciting for any period specified in the order if –

(a) the organisation is convicted of an offence against this Act; or

(b) [Section 15 Subsection (1) amended by No. 16 of 2006, s. 9, Applied:01 Nov 2006] the magistrate is satisfied that soliciting should cease during the conduct of an investigation by the Commissioner.

(2)  An organisation must not solicit for any charitable purpose in contravention of an order made under subsection (1) .

Penalty:  Fine not exceeding 10 penalty units.

16.   Appointment of administrator

(1)  [Section 16 Subsection (1) amended by No. 16 of 2006, s. 10, Applied:01 Nov 2006] On application by the Commissioner following a conviction of an organisation for an offence against section 12 , 13 or 14 , a magistrate may, by order, appoint an administrator for the purpose of redistributing the funds of the organisation.

(2)  Where an administrator is appointed under subsection (1) , the magistrate may direct that the administrator –

(a) conduct the affairs and activities of the organisation; or

(b) conduct such of the affairs and activities of the organisation as relate to the administration, application and management of funds raised wholly or partly from donations solicited from the public.

(3)  [Section 16 Subsection (3) amended by No. 16 of 2006, s. 10, Applied:01 Nov 2006] Where an administrator is appointed under subsection (1) , the magistrate may, on the application of the Commissioner, direct the administrator to disburse any funds of the organisation –

(a) for any charitable purpose which is very similar to the stated purpose for which the funds were solicited; or

(b) [Section 16 Subsection (3) amended by No. 16 of 2006, s. 10, Applied:01 Nov 2006] where that purpose is not ascertainable, for any charitable purpose nominated by the Commissioner.

17.   

18.   Regulations

(1)  The Governor may make regulations for the purpose of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) specify the size, location, duration or requirements in respect of any disclosure required by this Act; and

(b) [Section 18 Subsection (2) amended by No. 16 of 2006, s. 11, Applied:01 Nov 2006] provide for information or documents, including the form of information or documents, required by the Commissioner for the purpose of giving an approval under section 6 and may specify the extent of that approval and any limits to that approval; and

(c) [Section 18 Subsection (2) amended by No. 16 of 2006, s. 11, Applied:01 Nov 2006] provide for a fee payable to the Commissioner on granting the approval; and

(d) prohibit the payment of a commission to any person where that commission exceeds a specified percentage of any donation; and

(e) provide for a penalty if a payment is made in contravention of the regulations.

19.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and

(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

20.   

The amendments effected by this section have been incorporated into the authorised version of the Consumer Affairs Act 1988 .