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:means a person appointed under this Act as an inspector or a person authorised by or under this Act to exercise the functions of an authorised inspector.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.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.(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.s 4: Am 2017 No 36, Sch 1 [1].
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, oris or includes a charitable purpose.(b) that the purpose of an activity or enterprise of which that soliciting or receiving is a part,(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.s 5: Am 2018 No 65, Sch 7.5 [1].
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 who conducts a fundraising appeal is guilty of an offence 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 (3) to conduct the appeal without an authority.Maximum penalty: 50 penalty units.(2) A person who conducts a fundraising appeal in contravention of any condition attached to an authority authorising the appeal is guilty of an offence.Maximum penalty: 50 penalty units.(3) 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
A person who participates in a fundraising appeal which the person knows, or could reasonably be expected to know, is being conducted unlawfully is guilty of an offence.Maximum penalty: 50 penalty units.
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, orexcept in accordance with this section.(b) otherwise partly for the person’s benefit,Maximum penalty: 50 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,(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.(3) Nothing in this section affects the Minister’s discretionary power to attach any other condition to an authority.
12 Publicity
(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: 50 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.s 12: 2018 No 65, Sch 7.5 [2]
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, ormust 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.(b) who is acting on behalf of a person who is conducting or is proposing to conduct a fundraising appeal,Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.s 13: Am 2002 No 28, Sch 4.1 [1].
Division 2 Authority to conduct fundraising appeals
13A Application to authorities of Licensing and Registration (Uniform Procedures) Act 2002
(1) The Minister 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) section 17 (1) of that Act does not have effect, and(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.s 13A: Ins 2002 No 28, Sch 4.1 [2].
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 Minister 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.s 14: Am 2002 No 28, Sch 4.1 [3] [4].
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 in New South Wales 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 in New South Wales 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.s 15: Am 2002 No 28, Sch 4.1 [5] [6].
16 How application dealt with
(1) (Repealed)(2) The Minister may refuse an application for an authority if the Minister 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) that all of the persons proposing to conduct the appeal, and all persons associated with the proposed appeal, are fit and proper persons to administer, or to be associated with, a fundraising appeal for charitable purposes,(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.(3), (4) (Repealed)(5) Receipt by the Minister of an application for an authority, or of any further information required, is to be acknowledged by notice (a receipt notice) to the applicant.(6) If the Minister has not disposed of an application for an authority within a period of 60 days after the date of the receipt notice for the application (or—if further information is sought during that period—within 60 days after the date of the receipt notice for that information) the application is taken to have been approved. In such a case, the authority is taken to have been duly granted subject only to such conditions as may be prescribed by regulations made for the purposes of this subsection.(7) Nothing in subsection (6) affects the power of the Minister to vary the conditions of an authority in accordance with the provisions of this Part.s 16: Am 2002 No 28, Sch 4.1 [7] [8].
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 (Repealed)
s 18: Rep 2002 No 28, Sch 4.1 [9].
19 Conditions of authority
(1) The Minister may attach to an authority any condition that, having regard to the objects and purposes of this Act and the public interest, the Minister thinks ought to be imposed in the particular case.(2) The conditions for the time being attached to an authority may be varied by the Minister by notice in writing served on the holder of the authority.(3) For the purposes of this Act:(a) the imposition of a condition on an authority to which no conditions were previously attached, or(b) the imposition of any new condition on an authority, or(c) the amendment of a condition of an authority, oris a variation of its conditions.(d) the removal of a condition 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 at a bank, building society or credit union or at any other institution prescribed (or of a class prescribed) by the regulations. The account is to consist only of money raised in the fundraising appeal concerned, or in that and other such appeals conducted by the same persons. The account is to be kept in the name of or on behalf of the person conducting the appeal and is to be operated by not fewer than 2 persons jointly. This subsection, however, has effect subject to the conditions of any particular authority.(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, oris guilty of an offence.(b) aids, abets, counsels or procures a contravention,Maximum penalty: 50 penalty units or imprisonment for 6 months, 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.s 20: Am 1996 No 24, Sch 1.
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 the Public Authorities (Financial Arrangements) Act 1987 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:(a) be kept in writing in the English language or so as to enable the records to be readily accessible and readily convertible into writing in the English language, and(b) include any particulars required by the regulations, and(c) subject to the conditions of any authority, be kept at all times at the registered office of the person conducting the appeal, and(d) be kept for a period of at least 7 years (or such shorter period as the Minister may approve) after the receipt of the income or the incurring of the expenditure to which they relate.(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.Maximum penalty: 50 penalty units.
23 Periodic return by holder of authority (other than incorporated organisation)
(1) A natural person or unincorporated organisation that for the time being holds an authority to conduct a fundraising appeal must send to the Minister returns giving details of the application of the proceeds of any fundraising appeals conducted by the person or organisation since the last such return was furnished (or, if no such returns have been lodged previously, since the authority was granted).(2) The returns are to be sent at such intervals as may be specified in the authority, at such times as may be so specified (or within such further time as the Minister may allow).(3) Each such return is to be in a form approved by the Minister and must show:(a) the gross amounts received from each appeal, and(b) the net amount received after the deduction of expenses.(4) 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.Maximum penalty: 50 penalty units.
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 by a person qualified to audit accounts for the purposes of the Corporations Act 2001 of the Commonwealth or having other qualifications or experience approved by the Minister.(2) The auditor must report on:(a) whether the accounts show a true and fair view of the financial result of fundraising appeals for the year to which they relate, and(b) whether the accounts and associated records have been properly kept during that year in accordance with this Act and the regulations, and(c) whether money received as a result of fundraising appeals conducted during that year has been properly accounted for and applied in accordance with this Act and the regulations, and(d) the solvency of the person or organisation.(3) If the auditor, in the course of the performance of the auditor’s duties for the purposes of this section, is satisfied that:(a) there has been a contravention of this Act or the regulations, andthe auditor must immediately report the matter to the Minister.(b) the circumstances are such that, in the auditor’s opinion, the matter has not been or will not be adequately dealt with by comment in the auditor’s report on the accounts or by bringing the matter to the notice of the person concerned or of the trustees or members of the governing body of the organisation concerned (as the case may be),(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].
25 Exemptions
(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.
Part 3 Powers of the Minister in respect of fundraisers
Division 1 Investigations
26 Minister may inquire into fundraisers
(1) The Minister may, with respect to any matter arising under this Act, inquire into any person or organisation that:(a) is conducting or has conducted, or is participating or has participated in, a fundraising appeal, or(b) the Minister has reason to believe is conducting or has conducted, or is participating or has participated in, a fundraising appeal.(2) The Minister may cause an inquiry under this section to be made by an authorised inspector, either with respect to a particular matter or with respect to any matter.
27 Power of Minister to require accounts etc
(1) For the purposes of any inquiry under this Part, the Minister or an authorised inspector may require any person to do any one or more of the following:(a) to furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter about which the person has or can reasonably obtain information,(b) to provide answers in writing to any questions addressed to the person on any such matter,(c) to verify any such account, statement or answer by statutory declaration,(d) to attend at a specified time and place and give evidence or produce documents in the person’s custody or under the person’s control which relate to any matter in question at the inquiry,(e) to furnish copies of or extracts from any document in the person’s custody or under the person’s control which relates to any matter in question at the inquiry or to make any such document available for inspection.(2) Any requirement under this section is to be made by notice in writing served on the person concerned and specifying a reasonable time within which the requirement is to be complied with.(3) For the purposes of any inquiry under this Part, evidence may be taken on oath and the person conducting the inquiry may for that purpose administer oaths.(4) The person conducting the inquiry may take possession of documents produced to the person for such period as the person considers necessary for the purposes of the inquiry and may make copies of or take extracts from them. During that period the person conducting the inquiry must permit a person who would be entitled to inspect any one or more of those documents if they were not in the possession of the person conducting the inquiry to inspect at all reasonable times such of those documents as that person would be entitled to inspect.
28 Power of entry and inspection
(1) If an authorised inspector believes on reasonable grounds that any documents relevant to an inquiry under this Part are likely to be found on any premises, the authorised inspector may:(a) enter the premises, and(b) require production of the documents, and(c) take copies of or extracts from the documents or take possession of the documents for such period as he or she considers necessary for the purposes of the inquiry.(2) Section 27 (4) applies to documents taken under subsection (1) (c).(3) A power conferred by this section:(a) may not be exercised in relation to any premises used as a dwelling, or in relation to a part of any premises so used, except with the consent of the occupier of the premises or part or by the authority of a search warrant, and(b) may be exercised only at reasonable times and on reasonable notice to the occupier of any affected premises, except where the Minister has certified that, in the circumstances, the power may be otherwise exercised (in which case it may be exercised in accordance with the Minister’s directions).(4) A power conferred by this section may not be exercised unless the person exercising it is in possession of a certificate issued by the Minister which:(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the powers conferred, and(d) bears the signature of the Minister.(5) A person exercising a power to enter premises must produce his or her certificate to the occupier of the premises.(6) If damage is caused by a person exercising a power to enter premises, a reasonable amount of compensation is recoverable as a debt owed by the Crown to the owner of the premises unless the occupier hindered or obstructed the exercise of the power.
29 Search warrant
(1) An authorised inspector may apply to an authorised officer (within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002) for a search warrant if the inspector has reasonable grounds for believing that documents relating to any matter in question at an inquiry being conducted under this Part or Part 3A are kept at a particular place and that:(a) the place is used as a dwelling, or(b) a person having custody or control of those documents has neglected or failed to comply with a requirement under this Act to produce them or to furnish copies of or extracts from them, or(c) the place is unoccupied or the occupier is temporarily absent.(2) The authorised officer to whom the application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised inspector named in the warrant to enter the place and to search for and take possession of documents of a kind specified in the warrant.(3) An authorised inspector who enters any place by virtue of such a warrant may take with him or her such other persons as may be necessary, and on leaving any unoccupied place so entered must, as far as practicable, leave it as effectively secured against trespassers as he or she found it.(4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.s 29: Am 2002 No 103, Sch 4.5 [1]–[3]; 2017 No 36, Sch 1 [2].
30 Offences in relation to inquiries
A person who:(a) neglects or fails to comply with a requirement duly made by a notice under this Division within the time specified in the notice, or(b) alters, destroys or conceals any document referred to in section 27 (1) (e), or(c) refuses to take an oath required to be taken under this Division, oris guilty of an offence.(d) hinders or obstructs the Minister or any authorised inspector in the exercise of his or her functions under this Division,Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
Division 2 Revocation of authority and disposition of funds
31 Revocation of authority
(1) The Minister may, by order published in the Gazette, revoke an authority if the Minister is satisfied:(a) that any fundraising appeal conducted by the holder of the authority has not been conducted in good faith for charitable purposes, or(b) that any of the persons who have conducted a fundraising appeal by virtue of the authority, or any persons associated with any such appeal, are not fit and proper persons to administer, or to be associated with, a fundraising appeal for charitable purposes, or(c) that any fundraising appeal conducted by virtue of the authority has been improperly administered, or(d) that, in connection with any fundraising appeal conducted by virtue of the authority, the provisions of this Act or the regulations or the conditions of the authority were not complied with by any person conducting or participating in the appeal, or(e) that the holder has not conducted a fundraising appeal within the previous 24 months, or(f) that, in the public interest, the authority should be revoked.(2) The revocation of an authority is not stayed by lodgment of an appeal against the revocation.(3) The revocation of an authority does not have effect until notice of the revocation, and of the reasons for it, is served on the holder of the authority.(4) Notice of the revocation of an authority is to be published by the Minister in at least one newspaper circulating throughout New South Wales (whether published in print or on a publicly accessible website) or at least one publicly accessible website that, in the opinion of the Minister, is appropriate to cause the notice to come to the attention of the public.(5) If the Minister has revoked an authority, the Minister may subsequently, if the Minister thinks fit, issue a further authority (whether in the same terms or otherwise) to the same person or organisation without the need for further application.s 31: Am 2017 No 25, Sch 3.1.
32 Application of funds in absence of authority
(1) If the Minister has revoked the authority of any person or organisation or if the Minister is satisfied that a person or organisation is conducting or has conducted a fundraising appeal without lawful authority or in a manner contrary to the person’s or organisation’s authority to do so, the Minister may apply to the Supreme Court for an order for the disposition of assets of the person or organisation which the Supreme Court is satisfied are, or are traceable to, the proceeds of any fundraising appeal conducted by the person or organisation.(2) More than one such application may be made in respect of the same person or organisation.(3) Having regard to the purposes or objects of any fundraising appeals to which any such assets are referable, the Supreme Court may make such order for their disposition as it thinks fit.(4) The Supreme Court in any such case may make such consequential or ancillary orders as it thinks fit.
Division 3 Administration of fundraising organisations by administrator
33 Appointment of administrator
(1) The Minister may, by instrument in writing, appoint an administrator:(a) to conduct the affairs and activities of any non-profit organisation that is conducting or has conducted one or more fundraising appeals, or that has or had as one of its objects a charitable purpose, or(b) to conduct such of the affairs and activities of any other organisation that is conducting or has conducted one or more fundraising appeals as relate to the administration, application and management of funds raised in any such appeal.(2) An administrator is not to be appointed unless the Minister believes on reasonable grounds that:(a) after the organisation has been notified by the Minister of any contravention of a provision of this Act or the regulations or a condition imposed on the organisation by or under this Act:(i) the organisation has failed to remedy the contravention to the extent that it is capable of remedy, or(ii) the organisation has committed a further contravention of the provision or condition, or(iii) the contravention of the provision or condition has continued, or(b) an examination or inquiry under this Act in relation to the organisation has disclosed reasonable grounds to suspect a misappropriation of funds of the organisation or of mismanagement of the organisation, or(c) for other reasons it is in the public interest that the administrator be appointed.
34 Notice of appointment
(1) The Minister must serve notice of the appointment of an administrator on the organisation concerned.(2) When a notice under this section is served on a non-profit organisation:(a) the members of the governing body of the organisation cease to hold office, and(b) if the notice so provides, all contracts of employment with the organisation are terminated, and(c) if the notice so provides, all contracts for the provision of secretarial or administrative services to the organisation are terminated.
35 Administration
(1) An administrator has the functions of the governing body of the organisation and no appointment of a person to that body may be made while the administrator holds office, except as required by this section.(2) Before revoking the appointment of an administrator for an organisation (otherwise than for the purpose of appointing a new administrator), the Minister must:(a) ensure that the members of the governing body of the organisation have been appointed in accordance with the constitution of the organisation, or(b) appoint those members.(3) Members of the governing body of an organisation appointed by the Minister under this section are taken to have been appointed in accordance with the constitution of the organisation.(4) Any members so appointed:(a) take office on revocation of the appointment of the administrator, and(b) hold office in accordance with the constitution of the organisation concerned.
36 Audit requirements while administrator holds office
(1) For so long as an administrator holds office, the provisions of any relevant Act or law relating to the appointment and re-appointment of auditors and the functions of auditors (being provisions which would have been applicable to the organisation concerned if the administrator had not been appointed) continue to apply to the organisation.(2) For the purposes of the application of those provisions, a reference in those provisions to the directors of a company is to be construed as a reference to the administrator of the organisation.
37 Expenses of administration
(1) The expenses of and incidental to the administration of the affairs and activities of an organisation by an administrator appointed under this Division are payable by the organisation.(2) The remuneration of an administrator of an organisation who is not an employee of the Crown is an expense to which this section applies and is to be fixed by the Minister.(3) Where an administrator is an employee of the Crown, the reimbursement of the Crown of an amount certified by the Minister in respect of the remuneration of that employee is an expense to which this section applies and is recoverable from the organisation in a court of competent jurisdiction as a debt due to the Crown.
38 Liability for losses incurred during administration
(1) An administrator appointed under this Division is not liable for any loss incurred by the organisation during the administrator’s term of office unless the loss was attributable to:(a) wilful misconduct of the administrator, or(b) gross negligence of the administrator, or(c) wilful failure of the administrator to comply with any provision of this Act or the regulations or of the constitution of the organisation (in so far as any such provision of the constitution is applicable to the members of the governing body of the organisation).(2) Neither the Crown nor the Minister is liable for any loss incurred by the organisation during the term of office of an administrator, whether or not the administrator is so liable.
Division 4 Miscellaneous provisions
39 Remission of cases to the Attorney General
(1) If the Minister is of the opinion:(a) that legal proceedings should be instituted with respect to any person or organisation that has conducted fundraising appeals or with respect to any assets or affairs of such a person or organisation, andthe Minister may remit the case to the Attorney General, together with such statements and particulars (if any) as in the opinion of the Minister are necessary for the explanation of the case.(b) that under the circumstances it is desirable that such proceedings should be instituted by the Attorney General,(2) The Attorney General may institute and prosecute such legal proceedings as the Attorney General, on consideration of the circumstances, considers proper in the circumstances of the case.
40 Auditor-General to act as or provide inspector
(1) For the purposes of this Act, the Auditor-General may (and on the request of the Minister, is required to):(a) exercise the functions of an authorised inspector under this Act or the regulations or assist and advise the Minister on any matter arising in the execution of this Act or the regulations, or(b) provide some suitably qualified member or members of the Auditor-General’s staff to do so.(2) The Auditor-General or such a member of staff has the functions of an authorised inspector under this Act and the regulations.
41 Recovery of certain expenses
(1) If the Minister so directs, the whole or any part of the expenses incurred by the Auditor-General in or in connection with the exercise by the Auditor-General or a member of the Auditor-General’s staff of any of the functions of an authorised inspector in relation to a particular organisation is payable by the organisation and recoverable from the organisation by the Auditor-General as a debt in a court of competent jurisdiction.(2) If the Minister so directs, the remuneration of and any expenses incurred by an authorised inspector or public inquirer (or their agents) who is not an employee of the Crown are, where the remuneration and expenses are referable to the exercise of any of the functions of the inspector or inquirer under this Act in relation to a particular person or organisation, payable by the person or organisation and recoverable in a court of competent jurisdiction as a debt due to the Crown.(2A) In addition to the Minister’s powers under subsections (1) and (2), the Minister may direct that the costs of an inquiry under Part 3 or a public inquiry are payable by 2 or more persons or organisations in the proportions that the Minister considers appropriate. The costs are payable by those persons or organisations in the proportions directed and are recoverable from each of them in a court of competent jurisdiction as a debt due to the Crown.(2B) Subsection (2A) extends to:(a) an inquiry under Part 3 that began (but was not completed) before the commencement of the subsection, and(b) if an inquiry began under Part 3 and then became a public inquiry—the costs of both the inquiry under Part 3 and the public inquiry.(3) The amount recoverable from a person or organisation under subsection (1) is an amount certified by the Auditor-General to be the amount so recoverable.(4) The amount recoverable from a person or organisation under subsection (2) is an amount certified by the Minister to be the amount so recoverable.(5) If the organisation concerned is an unincorporated organisation, the trustees or persons who are members of the governing body of the organisation are jointly and severally liable for any debts of the organisation under this section.(6) When deciding whether to direct a person or organisation to make payments under this section, the Minister must take into account the financial viability of the person or organisation.s 41: Am 2017 No 36, Sch 1 [3]–[6].
Part 3A Public inquiries
Division 1 Preliminary
pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41A Definitions
In this Part:existing non-public inquiry—see section 41C (1).qualified person—see section 41B (3).pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
Division 2 Establishment of public inquiries
pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41B Appointment of public inquirers to conduct public inquiries
(1) The Minister may appoint a qualified person to conduct a public inquiry into:(a) any person, organisation or matter into which the Minister may cause an inquiry to be made by an authorised inspector under Part 3, or(b) any other matter associated with fundraising appeals.(2) The Minister may appoint a public inquirer only if the Minister and the Premier consider that it is in the public interest for a public inquiry to be conducted.(3) A person is a qualified person only if the person holds or has held office as:(a) a Judge of the Supreme Court of the State or any other State or a Territory, or(b) a Judge of the Federal Court of Australia, or(c) a Justice of the High Court.(4) However, a person is not a qualified person if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41C Reconstitution of existing non-public inquiry as public inquiry
(1) The Minister may appoint an authorised inspector conducting an inquiry under Part 3 (an existing non-public inquiry) to be a public inquirer for that inquiry if:(a) the inspector is a qualified person, and(b) the Minister and the Premier consider that it is in the public interest for a public inquiry to be conducted.(2) If such an appointment is made:(a) the existing non-public inquiry is, on and from the time of the appointment, to be conducted as a public inquiry under this Part, and(b) the public inquiry is to be in relation to the same matters as the existing non-public inquiry unless the instrument of appointment provides differently, and(c) any matters requiring compliance under Division 1 of Part 3 in relation to the existing non-public inquiry that have not yet been complied must still be complied with, and(d) any search warrant issued under Division 1 of Part 3 in relation to the existing non-public inquiry remains valid and can be executed, and(e) any person who was engaged to assist the authorised inspector conducting the existing non-public inquiry, or allowed to represent a person in the existing non-public inquiry, may continue to assist or represent in the public inquiry, and(f) any information or evidence that was obtained under Division 1 of Part 3 in relation to the existing non-public inquiry may be used in and for the purposes of the public inquiry, and(g) any other matter or thing that had effect in relation to the existing non-public inquiry continues to have effect in relation to the public inquiry.(3) A public inquirer for a public inquiry that was previously an existing non-public inquiry may give such directions as the public inquirer considers appropriate to facilitate the reconstitution of the existing non-public inquiry as a public inquiry.(4) This section extends to existing non-public inquiries that began (but were not completed) before the commencement of this Part.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41D Protection from liability
A public inquirer has, in the exercise of functions under this Part as a public inquirer, the same protection and immunity as a Judge of the Supreme Court.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41E Reports on public hearings
(1) The Minister may, in the instrument of appointment of a public inquirer, require the public inquirer to prepare and provide to the Minister one or more reports on a public inquiry (including reports before the public inquiry is concluded) on specified matters within a specified time.(2) The public inquirer must prepare any report required by the Minister.(3) The Minister may cause a copy of a report provided to the Minister to be published in any way that the Minister considers appropriate, including by publishing it on a website or tabling it in one or both Houses of Parliament.(4) A copy of a report to be tabled in a House of Parliament may be presented to the Clerk of the House if the House is not sitting when it is sought to be tabled.(5) A copy of a report presented under subsection (4):(a) is, on presentation and for all purposes, taken to have been laid before the House, and(b) may be printed by authority of the Clerk of the House, and(c) if so printed, is taken to be a document published by or under the authority of the House, and(d) is to be recorded:(i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, andon the first sitting day of the House after receipt of the copy of the report by the Clerk.(ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly,pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41F Procedural guidelines relating to public inquiries
(1) A public inquirer is to issue guidelines relating to the conduct of the public inquiry if the public inquirer considers it in the public interest to do so.(2) Without limiting subsection (1), the guidelines may provide guidance on the following aspects of the conduct of the public inquiry:(a) the investigation of evidence that might exculpate relevant persons,(b) the disclosure of exculpatory and other relevant evidence to relevant persons,(c) the opportunity to cross-examine witnesses as to their credibility,(d) providing relevant persons and other witnesses with access to relevant documents and a reasonable time to prepare before giving evidence,(e) any other matter the public inquirer considers necessary to ensure procedural fairness.(3) The public inquirer is to ensure that the guidelines are made publicly available.(4) In this section:relevant person means a person against whom substantial allegations have been made in the course of or in connection with the public inquiry.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
Division 3 Hearings
pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41G Hearings
(1) A public inquirer may hold hearings in connection with a public inquiry.(2) A hearing is to be held in public unless the public inquirer directs differently.(3) The public inquirer may direct that a hearing (or part of a hearing) be held in private if satisfied that it is desirable to do so because of the confidential nature of any evidence or matter or for any other reason.(4) When deciding whether to direct that a hearing be held in private (and without limiting subsection (3)), one of the matters that the public inquirer must take into account is the effect of a public hearing on the reputation of any persons appearing before the public inquiry.(5) If the public inquirer directs that a hearing (or part of a hearing) is to be held in private, the public inquirer may give directions as to the persons who may be present at the hearing (or that part of the hearing).pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41H Right of appearance
(1) Any Australian legal practitioner appointed by the Crown to assist a public inquirer may appear before a public inquiry.(2) If it is shown to the satisfaction of the public inquirer that any person is substantially and directly interested in any subject-matter of a public inquiry, the public inquirer may allow the person (the affected person) to appear at the public inquiry or a specified part of the public inquiry.(3) The public inquirer may authorise:(a) a person giving evidence at a public inquiry, orto be represented by an Australian legal practitioner at the public inquiry or a specified part of the public inquiry.(b) an affected person,(4) The public inquirer is required to give a reasonable opportunity for a person giving evidence at a public inquiry to be legally represented.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41I Legal and financial assistance for witness
(1) A witness who is appearing or about to appear before a public inquiry may apply to the Minister for legal or financial assistance.(2) The Minister may approve the provision of legal or financial assistance to the applicant if the Minister is of the opinion that this is appropriate, having regard to any one or more of the following:(a) the prospect of hardship to the witness if assistance is declined,(b) the significance of the evidence that the witness is giving or appears likely to give,(c) any other matter relating to the public interest.(3) On giving the approval, the Minister may authorise the provision to the witness of legal or financial assistance determined by the Minister in respect of the witness’s appearance before the public inquiry. The assistance is to be provided out of money provided by Parliament for the purpose.(4) The assistance may be provided unconditionally or subject to conditions determined by the Minister.(5) The Minister may delegate one or more of the Minister’s functions under this section to the Secretary of the Department of Finance, Services and Innovation.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41J Witnesses
A public inquirer may issue a summons to a person to appear before the public inquirer at a time and place named in the summons:(a) to give evidence, oror both.(b) to produce such documents or other things (if any) as are referred to in the summons,pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41K Evidence on oath or affirmation
A public inquirer may, at a hearing of a public inquiry, take evidence on oath or affirmation and for that purpose:(a) the public inquirer may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the public inquirer, and(b) the public inquirer, or any other person authorised by the public inquirer, may administer an oath or affirmation to a person so appearing at the hearing.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41L Examination and cross-examination of witnesses
(1) A person authorised or required to appear at a public inquiry, or an Australian legal practitioner or other person allowed to represent a person at a public inquiry, may, with the leave of the public inquirer, examine or cross-examine any witness on any matter that the public inquirer considers relevant.(2) If an Australian legal practitioner is appointed to assist the public inquirer at a public inquiry, the Australian legal practitioner may examine or cross-examine any witness on any matter that the public inquirer considers relevant.(3) Any witness examined or cross-examined under this section has the same protection and is subject to the same liabilities as if examined by the public inquirer.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41M Restrictions on publication of evidence
A public inquirer may give directions preventing or restricting the publication of evidence given before the public inquirer or of matters contained in documents obtained or received by the public inquirer.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41N Protection from incrimination
(1) Self-incrimination not an excuse A person is not excused from a requirement under this Part to produce a record, document or thing, to give information or evidence or to answer a question on the ground that the record, document, thing, information, evidence or answer might incriminate the person or make the person liable to a penalty.(2) Answer, information or evidence not admissible if objection made However, any record, document or thing produced, or information, evidence or answer given, by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in civil or criminal proceedings (except as provided by subsection (3)) if:(a) the person objected at the time to doing so on the ground that it might incriminate the person, or(b) the person was not warned at an appropriate time that the person may object to producing the record, document or thing, or giving information, evidence or answer, on the ground that it might incriminate the person.(3) Subsection (2) does not prevent any record, document or thing produced, or information, evidence or answer given, by a natural person in compliance with a requirement under this Part from being admitted in evidence in:(a) proceedings for an offence against this Part (including section 30 as extended to this Part by section 41S), or(b) proceedings for contempt in relation to a public inquiry, or(c) proceedings in connection with the revocation or refusal of an authority or the variation, revocation or imposition of conditions on an authority under this Act.(4) Appropriate time for giving warning about incrimination An appropriate time for warning a person is any of the following times:(a) the time when the requirement to produce the record, document or thing, or give the information, evidence or answer, is made,(b) in the case of evidence required to be given when appearing before a public inquirer, any time after the start of the appearance before the inquirer,(c) at or about the time immediately before the person produces the record, document or thing or gives the information, evidence or answer.(5) Further information Further information obtained as a result of a record, document or thing produced or information, evidence or answer given in compliance with a requirement under this Part is not inadmissible on the ground:(a) that the record, document, thing, information, evidence or answer had to be produced or given, or(b) that the record, document, thing, information, evidence or answer might incriminate the person.(6) Application of section to reconstituted existing non-public inquiries This section extends to a requirement made under Division 1 of Part 3 in relation to an existing non-public inquiry before it was reconstituted as a public inquiry if the requirement had not yet been complied with when it was reconstituted.Note—Section 41C (2) (c) operates to require compliance with requirements made under Division 1 of Part 3 in relation to an existing non-public inquiry that becomes a public inquiry if the requirements have not yet been complied with.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
Division 4 Powers of public inquirer
pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41O Powers of public inquirer generally
(1) A public inquirer has, for the purposes of a public inquiry, all the powers, rights and privileges that the Supreme Court (or any Judge of the Supreme Court) has in, or in relation to, any proceedings concerning each of the following matters:(a) compelling the attendance of witnesses,(b) compelling witnesses to answer questions that the public inquirer considers to be relevant to the public inquiry,(c) compelling the production of documents or other things,(d) punishing persons guilty of contempt or of disobedience of any direction, order or summons made or issued by the public inquirer.(2) This section is in addition to, and does not limit, any other power, right or privilege conferred on a public inquirer by another provision of this Part.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41P Investigative powers under Division 1 of Part 3
(1) The provisions of sections 27 (Power of Minister to require accounts etc) and 28 (Power of entry and inspection) extend to public inquiries.(2) For this purpose:(a) any reference to an inquiry under Part 3 is to be read as including a reference to a public inquiry, and(b) any reference to the purposes of any inquiry under Part 3 is to be read as including a reference to the purposes of any public inquiry, and(c) any reference to the Minister is to be read as including a reference to a public inquirer.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41Q Search warrant
(1) The public inquirer may direct an authorised inspector to apply to an authorised officer (within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002) for a search warrant if the public inquirer has reasonable grounds for believing that documents or things relating to a matter relevant to a public inquiry are kept at a particular place and that:(a) the place is used as a dwelling, or(b) a person having custody or control of those documents or things has neglected or failed to comply with a requirement under this Act to produce them or to furnish copies of or extracts from them, or(c) the place is unoccupied or the occupier is temporarily absent.(2) A direction under this section operates to authorise the authorised inspector to make an application under section 29 even if the inspector does not have the kind of belief referred to in section 29 (1).(3) To avoid doubt, a search warrant issued under section 29 on an application directed under this section may extend to things as well as documents.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
Division 5 Miscellaneous
pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41R Apprehension of witnesses
(1) If a person served with a summons to attend a public inquiry as a witness fails to attend in answer to the summons, the public inquirer may, on proof by statutory declaration of the service of the summons, issue a warrant for the apprehension of the witness.(2) A warrant under this section authorises the apprehension of the witness and his or her being promptly brought before the public inquirer and detained in a correctional centre or elsewhere for that purpose until released by order of the public inquirer.(3) A warrant issued under this section may be executed by any police officer, or by any person to whom it is addressed, and the person executing it may use such force as is reasonably necessary for the purpose of entering any premises for the purpose of executing it.(4) The issue of a warrant or the apprehension of a witness does not relieve the witness from any liability incurred by the witness for non-compliance with a summons.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41S Offences in relation to public inquiries
(1) Section 30 (Offences in relation to inquiries) extends to public inquiries with the following modifications:(a) the reference in section 30 (a) to a notice under Division 1 of Part 3 is to be read as including a reference to a notice under this Part (including a notice given in exercise of the powers conferred by section 41P),(b) the reference in section 30 (b) to a document referred to in section 27 (1) (e) is to be read as including a reference to a document that relates to any matter in question in a public inquiry,(c) the reference in section 30 (c) to an oath required to be taken under Division 1 of Part 3 is to be read as including a reference to an oath or affirmation required under this Part,(d) the reference in section 30 (d) to the exercise of functions under Division 1 of Part 3 by the Minister or an authorised inspector is to be read as including a reference to the exercise of functions under this Part by a public inquirer or an authorised inspector.(2) A person must not contravene:(a) a direction of a public inquirer that prohibits the person from being present at a hearing (or part of a hearing) of a public inquiry, or(b) a direction of a public inquirer that prevents or restricts the publication of evidence given before the public inquirer or of matters contained in documents obtained or received by the public inquirer.Maximum penalty (subsection (2)): 10 penalty units.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41T Exclusion of personal liability
(1) No liability is incurred by the Crown, and no personal liability is incurred by any of the following persons, for any act done or omitted, or for any statement made or issued, by any of them in good faith for the purposes of establishing or conducting a public inquiry:(a) the Minister,(b) the Secretary of the Department of Finance, Services and Innovation,(c) a person employed in the Public Service or engaged to assist the public inquirer to conduct a public inquiry.(2) No liability is incurred by a person for publishing in good faith:(a) a statement referred to in subsection (1), or(b) a fair report or summary of such a statement.(3) Subsections (1) and (2) extend to acts, omissions and statements occurring in connection with an existing non-public inquiry (including one begun before the commencement of this Part) that becomes a public inquiry under this Part.(4) An Australian legal practitioner assisting a public inquirer or representing a person before a public inquirer has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.(5) Subject to this Part, a person summoned to attend or appearing before a public inquirer as a witness, or producing a document or other thing to the public inquiry, has the same protection as a witness in proceedings in the Supreme Court.(6) No criminal or civil liability (apart from under the provisions of this Act) attaches to a person for compliance, or purported compliance in good faith, with any requirement made under this Part.(7) In particular, if a person gives any statement of information or produces any document or other thing under a production requirement, no civil liability attaches to the person for doing so, whether that liability would arise under a contract or otherwise.(8) In this section:barrister has the same meaning as in the Legal Profession Uniform Law (NSW).pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
41U Review of Part
The Minister is to ensure that the operation of this Part during the 3 years after its commencement is reviewed and that a report on the outcome of the review is published within 12 months after the end of that 3 year period.pt 3A, divs 1–5 (ss 41A–41U): Ins 2017 No 36, Sch 1 [7].
Part 4 Administrative reviews by Civil and Administrative Tribunal
pt 4, hdg: Subst 1997 No 77, Sch 5.5; 2013 No 95, Sch 2.20 [1].
pt 4: Subst 1997 No 77, Sch 5.5.
42 Administrative review of refusal to grant authority or against conditions imposed on authority
An applicant for an authority who is dissatisfied with any decision of the Minister with respect to the application may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.s 42: Subst 1997 No 77, Sch 5.5. Am 2013 No 95, Sch 2.20 [2].
43 Administrative review of revocation of authority
A person or organisation whose authority is revoked may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the revocation.s 43: Subst 1997 No 77, Sch 5.5. Am 2013 No 95, Sch 2.20 [3].
44 Administrative review of variation of authority
A person or organisation that holds an authority may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any variation of the conditions attached to the authority.s 44: Subst 1997 No 77, Sch 5.5. Am 2013 No 95, Sch 2.20 [4].
45 Determination by Civil and Administrative Tribunal of applications
The Civil and Administrative Tribunal, in determining an administrative review for the purposes of this Part, is to inquire into and decide the application having regard to the provisions of this Act and the public interest.s 45: Subst 1997 No 77, Sch 5.5. Am 2013 No 95, Sch 2.20 [5].
46 (Repealed)
s 46: Rep 1997 No 77, Sch 5.5.
Part 5 Miscellaneous
47 Public access to information
(1) A person or organisation that is (or, within the previous 12 months, was) the holder of an authority must, within 30 days after being requested to do so by any person, furnish the person with:(a) any audited financial statements requested by the person concerning fundraising appeals conducted by the person or organisation concerned during its last financial year and, to the extent that the regulations so require, during previous financial years, and(b) in the case of an organisation—such information as the regulations may prescribe concerning the objects and constitution (including the names and addresses of members of the governing body of the organisation) of the organisation.Maximum penalty: 5 penalty units.(2) Any such information and financial statements may, at the request of any person, be supplied to the person by or on behalf of the Minister.(3) A person is not entitled to be supplied with information or financial statements under this section unless the person has paid any relevant fee prescribed by the regulations.
48 Remuneration of board members of charitable organisations
(1) A person is not prohibited (despite any law to the contrary) from holding office or acting as a member of the governing body of a non-profit organisation having as one of its objects a charitable purpose merely because the person receives any remuneration or benefit from the organisation if:(a) the Minister, by order published in the Gazette, has declared that this section applies to that office, or(b) the Minister has given prior approval of a person who receives any such remuneration or benefit holding that office or acting in that capacity, or(c) the person concerned holds that office or acts in that capacity by virtue of his or her office as a minister of religion or a member of a religious order.(2) An approval under this section is subject to any conditions imposed by the Minister when giving the approval.(3) An approval under this section is to be in writing. Applications for such approvals must be addressed in writing to the Minister by the organisation concerned.(4) For the purposes of this section, every body, organisation or office referred to in section 7 (1) is taken to be a non-profit organisation having among its objects one or more charitable purposes.
49 Authorised inspectors
(1) The Minister may appoint any person to be an inspector for the purposes of this Act.(2) The Minister may authorise a police officer or other person to exercise such of the functions of an authorised inspector under this Act as the Minister may direct.(3) The regulations may authorise police officers of or above any specified rank to exercise all or any specified functions of an authorised inspector under this Act.
50 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily by the Local Court.(2) Any such proceedings may be commenced at any time within 3 years after the offence was allegedly committed.s 50: Am 2001 No 121, Sch 2.32; 2007 No 94, Sch 2.
51 Offences by corporations
(1) If a corporation contravenes any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or convicted under that provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
52 (Repealed)
s 52: Rep 2002 No 28, Sch 4.1 [10].
53 Delegation
The Minister may delegate to any public servant any of the Minister’s functions under this Act or the regulations (other than this power of delegation).
54 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by any of the following methods:(a) in the case of an individual—by personal delivery to the person,(b) by post to the address specified by the person for the service of documents of that kind,(c) in the case of an individual who has not specified such an address—by post to the residential or business address of the person last known to the person serving the document,(d) in the case of a corporation—by post to the registered office or any other office of the corporation or by leaving it at any such office with a person apparently over the age of 16 years,(e) by email to an email address specified by the person for the service of documents of that kind,(f) by any other method authorised by the regulations for the service of documents of that kind.(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person by any other method.(3) In this section, serve includes give or send.s 54: Subst 2018 No 65, Sch 7.5 [3].
55 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) The regulations may create offences punishable by a penalty not exceeding 20 penalty units.
56 Repeals
(1) The following Acts are repealed:(2) The Charitable Collections Regulations and any other regulations in force under those Acts are repealed.
57 (Repealed)
s 57: Rep 1999 No 85, Sch 4.
58 Savings and transitional provisions
Schedule 2 has effect.
Schedule 1 (Repealed)
sch 1: Rep 1999 No 85, Sch 4.
Schedule 2 Savings and transitional provisions
(Section 58)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a saving or transitional nature consequent on the enactment of this Act or any Act that amends this Act.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later day.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2 Certain organisations taken to hold authorities
(1) An organisation which, immediately before the repeal of the Charitable Collections Act 1934, was registered under that Act as a charity or was exempt from registration under that Act is taken to be the holder of an authority authorising the organisation to conduct any number of fundraising appeals.(2) Section 19, and the other provisions of this Act, apply to an authority created by the operation of subclause (1).(3) Subclause (1) ceases to apply to an organisation:(a) when its authority is revoked under this Act, or(b) when it alters its constitution in so far as its constitution relates to its charitable objects, orwhichever happens first.(c) at the end of a period of 2 years commencing on the repeal of the Charitable Collections Act 1934,
Part 3 Provisions consequent on enactment of Charitable Fundraising Amendment (Inquiries) Act 2017
3 RSL inquiry reconstituted as public inquiry
(1) This clause applies in relation to the inquiry under Part 3 of this Act (the RSL inquiry) into the following persons and organisations for which the Minister appointed the Honourable Patricia Anne Bergin SC on 15 May 2017 (the ) as the authorised inspector:(a) The Returned and Services League of Australia (New South Wales Branch) (“RSL NSW”), including but not limited to the members of the governing body and officers of RSL NSW,(b) the RSL Welfare and Benevolent Institution (also known as “RSL DefenceCare”) and its trustees (collectively, “WBI”), including but not limited to the members of the governing body and officers of WBI,(c) RSL Life Care Limited (“LifeCare”), including but not limited to the members of the governing body and officers of LifeCare.(2) The existing authorised inspector is taken, on and from the commencement of the amending Act, to have been appointed under section 41C (as inserted by the amending Act) to be a public inquirer for the RSL inquiry. As a result, section 41C (2) and (3) apply to the appointment as if the appointment had been duly made by the Minister under that section.(3) In this clause:amending Act means the Charitable Fundraising Amendment (Inquiries) Act 2017.
sch 2: Am 2017 No 36, Sch 1 [8]–[12].