Division 4Requirements to be met by
fundraisers
22Keeping 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.
s 22: Am 2018 No 64,
Sch 1[21] [22].
23Annual 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.
s 23: Subst 2018 No
64, Sch 1[23].
24Audit
(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)
(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.
s 24: Am 2001 No 34,
Sch 4.4 [1]–[3]; 2018 No 64, Sch 1[24].
24AAuthority 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.
s 24A: Ins 2018 No
64, Sch 1[25].
24BAuthority 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 not an ACNC
registered entity and is not required to lodge an annual return, the holder
must give the statement to the Secretary.
(5)
If the holder of an authority that contravenes
this section 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.
Maximum penalty—50 penalty
units.
s 24B: Ins 2018 No
64, Sch 1[25].
25Exemptions
(1)
The regulations may make provision for or with
respect to the exemption of a person or organisation (or of a class of persons
or organisations) from all or any of the provisions of this Division, other
than any provision relating to the keeping of records.
(2)
If a person or organisation referred to in
subsection (1) enters into a contract or arrangement with another person by
which that other person will or might receive any remuneration or benefit for
conducting or participating in a fundraising appeal, that other person is not,
by virtue of this section or any regulation, exempt from any of the provisions
of this Division.