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Newsflash (9 October 2017)
Consumer Affairs Australia and New Zealand (CAANZ) is seeking input on draft guidance on the application of the Australian Consumer Law (ACL) to the activities of charities, not-for-profit entities and fundraisers. You can access the draft guidance here. Views are sought until 27 October 2017.
Reform of fundraising regulatory framework is a critical issue for the sector
Not-for-profit Law is working in collaboration with some of Australia's leading professional and peak bodies to improve the state of fundraising regulation in Australia. Our short (45 second) video explains the problem - and the solution.
On 30 August we released released a video featuring some prominent Australian's calling for Governments to fix this issue. You can access it here.
We also wrote (again) to all Consumer Affairs ministers who were meeting on 31 August to decide on the recommendations made in the Final Report of the Australian Consumer Law. We asked that they agree to one recommendation and agree in principle to the other (see below). At the meeting ministers agreed to the recommendations, and also agreed to bring forward the timeframe for the project (see below, recommendation two) from 2010-2019 to 2018-2019. You can read their communique here.
Our response to this decision by ministers is set out in the following media release.
The Australian Consumer Law Review
The final report of the Australian Consumer Law review was published on 19 April 2017. It confirms that ‘in many cases the activities of fundraisers in seeking donations are captured by general provisions of the ACL’, however, there is a lack of guidance on the application of the ACL (to fundraising). The report notes the immediate need for such guidance and proposes it be developed as a priority project for 2017. As a follow up, in 2019-20 it is proposed a project be undertaken to ‘assess the effectiveness of the guidance’ and that 'this project will look at how this could inform whether any future reforms are needed to enable to sector to work more effectively to the benefit of the Australian community' (page 75-76 and page 97). Access a copy of the report here.
The report also stated that ‘some parts of the sector also suggested that the ACL should be amended so that the generic protections in particular apply expressly to fundraising. It was said that this would provide the reassurance needed to help state and territory governments reform their local fundraising laws, potentially in conjunction with enhanced self-regulatory regimes. Some stakeholders had strong views that these local laws were inconsistent, not suited to cross-border activities, online activities and crowdsourcing, and hinder the work of the not-for-profit sector. No further comment was provided on this suggestion.
The #fixfundraising campaign partners have written to all the Ministers responsible for the Consumer Law review (see here) urging them to:
1. Agree with the recommendation that regulator guidance be developed to clarify the current application of the ACL to not-for-profit fundraising activities and that this be completed in 2017.
The Report establishes there is a lack of regulator guidance which makes it difficult for the sector to determine if and how the ACL applies with any certainty, even though the ACL’s application to many fundraising activities was acknowledged in the Interim Report. Similarly, it is not clear to donors if and how the ACL applies to donations obtained in an unfair manner.
This proposal is strongly supported by the #fixfundraising coalition. See above re draft regulator guidance released on 6 October 2017 which you can access here.
2. Agree in principle with the recommendation that a project be commenced to assess the effectiveness of that guidance and any relevant regulatory actions, and whether any future reforms are needed to enable the sector to work more effectively to the benefit of the Australian community, but reject the timeframe of 2019-20 and propose it be commenced concurrently with the development of regulator guidance in 2017.
There is no need for any further research. The ineffectiveness of existing fundraising laws has been documented extensively by multiple government and independent inquiries dating back to 1995.
Instead of yet another delay, establish a small, specialist working group established by the end of 2017 to finalise minor changes to the ACL to clarify and broaden its coverage of fundraising activities.
The proposed three simple steps to achieve fundraising reform are:
1. Clarification and minor amendments to the Australian Consumer Law (ACL) to ensure application to fundraising activities is clear and broad
2. Repeal of fragmented state and territory fundraising laws, and
3. Work with regulators and self-regulatory bodies to provide guidance to fundraisers to continue to improve fundraiser conduct.
Read the Joint Statement on Fundraising Reform: