Charitable Fundraising Act 1991

The Act casts a wide net. Primary regulated persons are those who “conduct” fundraising appeals—organisers, governing bodies of incorporated or unincorporated associations, and officers who authorise or direct appeals (s 6(1), s 4(1) definition of “organisation”). “Participating” persons—collectors, employees, agents and those who assist in organisation—are subject to lesser but still significant obligations, particularly the prohibition on knowing participation in unlawful appeals (s 10).

“Traders” who conduct appeals in conjunction with their commercial activities (s 11) face additional contractual, disclosure and agreement requirements. Charities registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) that notify an intention to fundraise in New South Wales become deemed authority holders and are therefore subject to the compliance, notification and enforcement provisions (s 19B).

Office-holders of unincorporated organisations are personally exposed: trustees or governing-body members are deemed to commit offences if they knowingly authorise or permit contraventions of record-keeping (s 22(3)), annual returns (s 23(2)), auditing (s 24(4)), notification (s 24A(4)), compliance statements (s 24B(5)), compliance notices (s 25M(7)), prohibition orders (s 25P(3), s 25Q(3)), court orders (s 25Z(3)) or misapplication of funds (s 20(7)). They are also jointly and severally liable for administration expenses, Auditor-General costs and recovery orders (ss 37(5), 41(5)).

Authorised officers, public inquirers and administrators exercise statutory powers and are protected from liability when acting in good faith (ss 41T, 38). The Secretary (defined in s 4(1) to include the Commissioner for Fair Trading) is the principal decision-maker for authorities, suspensions, cancellations, prohibition orders, undertakings and referrals. The Minister holds residual powers to appoint administrators, public inquirers (with Premier concurrence), issue overriding orders against religious bodies, remit matters to the Attorney General and direct cost recovery.

Donors are indirectly protected but are not regulated. Religious bodies proclaimed under the Commonwealth Marriage Act 1961 or prescribed by regulation, together with their affiliates and authorised agents, are exempt from the licensing and most compliance obligations (s 7(1)), although they remain subject to the general misapplication offence in s 48 and may be brought back under the Act by Ministerial order (s 7(2)).

Commonwealth, State and local government bodies are excluded from the definition of fundraising appeal when they are the recipients (s 5(3)(e)). Workplace appeals among colleagues for the direct benefit of a fellow employee or their immediate family are also excluded provided they are conducted exclusively or predominantly among persons sharing a common employer (s 5(3)(d)).

Duties fall most heavily on authority holders and those conducting appeals. They must:

• Hold or act under a current authority (s 9(1)).
• Ensure all representations as to purpose are accurate and that funds are applied only to the represented charitable objects (s 20(1)).
• Pay gross receipts immediately into a dedicated ADI account (s 20(6)).
• Keep appeal-by-appeal records for the prescribed period, have them audited where required, lodge annual returns containing a true-and-correct declaration, and furnish a compliance statement (ss 22–24B).
• Notify the Secretary of prescribed changes and events within 28 days (s 24A).
• Comply with every condition of the authority and any applicable regulation (s 19).
• When conducting a trader appeal, enter a compliant written agreement, identify both parties in all publicity and disclose fund-distribution details (s 11(2)).

Public inquirers and authorised officers have extensive coercive rights: entry to non-residential premises without warrant at reasonable times (s 25E), power to require production of documents, answers to questions on oath, and seizure (ss 25G, 25H), and, with a warrant, entry to any premises including dwellings (s 25I). Public inquirers additionally possess Supreme-Court-equivalent powers to summon witnesses, take evidence on oath, issue search warrants via authorised officers, direct private hearings and restrict publication (ss 41J–41Q).

Rights of regulated persons include:

• The ability to apply for an authority or its renewal (ss 13A, 14, 18A).
• Procedural fairness before suspension, cancellation or prohibition orders (regulations made under ss 19A(2), 25P–25Q).
• Administrative review by NCAT of refusal to grant an authority, conditions imposed, cancellation, or variation of conditions (ss 42–44).
• The right to give an enforceable undertaking and thereby potentially avoid or discontinue proceedings (s 25W).
• For witnesses before a public inquiry, the modified privilege against self-incrimination (s 41N), the right to legal representation (s 41H), and the possibility of Ministerial legal or financial assistance (s 41I).
• Protection from personal liability for administrators acting without wilful misconduct, gross negligence or wilful breach of the Act or constitution (s 38(1)).

Organisations have the right to combine in a single application (s 14(2)) and to seek authorisation for branches provided governance controls exist (s 14(4)–(5)).

Penalties are graduated. Conducting an unlawful appeal carries 200 penalty units (s 9(1)). False representations to collectors or employees that statutory requirements have been met attracts 200 penalty units or 12 months imprisonment (s 13(2)). Misapplication of funds carries 200 penalty units or two years imprisonment (s 20(7)). Advertising unlawful appeals, false or misleading annual returns, and failure to notify notifiable events each attract 200 penalty units (ss 12(1), 23(5), 24A(4)). Lesser offences (participation in unlawful appeal, breach of compliance notice, record-keeping, auditing, annual returns, compliance statements) are 50 penalty units; many of these also impose personal liability on knowingly authorising office-holders.

Corporate officers are deemed to commit the same offence if they knowingly authorise or permit a corporate contravention (s 25Y). Courts may suspend or revoke authorities in addition to or instead of penalties (s 25Z).

Civil enforcement is prominent. Compliance notices (s 25M), prohibition orders (ss 25P–25Q), enforceable undertakings (ss 25R–25U) and cost-recovery orders (ss 25K, 41) allow swift administrative intervention without immediate criminal proceedings. The Secretary may suspend or cancel an authority on grounds including non-compliance, unfit persons, false statements, insolvency or prescribed matters (s 19A(1)); deemed authorities may additionally be cancelled for Commonwealth reporting failures (s 19B(3)).

Administrators may be appointed where there has been unremedied contravention, suspected misappropriation or where the public interest requires it (s 33). The Supreme Court may make cy-près-style orders for the disposition of misapplied or traceable funds when an authority has been cancelled or an appeal conducted without authority (s 52).

Public inquiries carry contempt-style sanctions: failure to attend, answer, produce documents or comply with directions can result in warrants for apprehension (s 41R) and offences punishable by 50 penalty units or six months imprisonment (s 41S applying s 25L). Publication restrictions are enforceable by 10 penalty unit fines (s 41S(2)).

The Act is expressly linked to several statutes. Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 applies to authorities with modifications (extended application periods, changed notification periods) (s 13A). The Fair Trading Act 1987 supplies investigators who are automatically authorised officers (s 4(1)). The Australian Charities and Not-for-profits Commission Act 2012 (Cth) supplies the trigger for deemed authorities and supplies additional cancellation grounds (s 19B).

Record-keeping and audit obligations sit alongside Corporations Act 2001 requirements; an auditor’s report prepared under this Act may be included in a Corporations Act report provided no inconsistency arises (s 24(6)–(7)). Investment rules defer to the Government Sector Finance Act 2018 and any special statutory investment powers (s 21(2)). Search warrants are issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (s 25I(3)).

Administrative reviews lie to NCAT under the Administrative Decisions Review Act 1997 (ss 42–45). The Interpretation Act 1987 supplies general definitions and construction rules (note to s 4(1)). The Dormant Funds Act 1942 and cy-près doctrines are preserved (s 20(2), (4)).

Religious exemptions reference proclamations under the Commonwealth Marriage Act 1961 (s 7(1)(a)). Penalty notices are issued under the Fines Act 1996 (s 25ZA). Public-inquiry procedural fairness draws on Supreme Court practice; public inquirers enjoy judicial immunity (s 41D) and legal practitioners assisting or appearing have barristerial immunity (s 41T(4)).

The Act binds the Crown in all capacities (s 8) and prevails over inconsistent regulations only to the extent of any express provision.

The most significant recent overhaul was effected by the Charitable Fundraising Amendment Act 2018 (No 64 of 2018). That Act substituted the offence provisions (ss 9–13), introduced the authority application framework referencing the Licensing and Registration (Uniform Procedures) Act 2002 (s 13A), replaced the former duration and renewal provisions with fixed-term authorities (ss 18, 18A), rewrote conditions, suspension and cancellation powers (ss 19–19A), and inserted the entire Part 2A enforcement suite—authorised officers, identity cards, entry and search powers, compliance notices, prohibition orders, enforceable undertakings, penalty-notice and corporate-officer liability provisions. It also repealed the former Part 3 inquiry regime and replaced it with the more judicialised public-inquiry regime in the new Part 3A (inserted earlier by the Charitable Fundraising Amendment (Inquiries) Act 2017 (No 36 of 2017) but substantially amended in 2018).

The 2017 amendments were a direct legislative response to perceived weaknesses exposed by the Royal Commission into Institutional Responses to Child Sexual Abuse and, more immediately, by governance failures within large charitable and veterans’ organisations. The Bergin Inquiry into RSL NSW, RSL DefenceCare and RSL LifeCare demonstrated the limitations of the former authorised-inspector model; the 2017 Act created a standing public-inquiry mechanism with former superior-court judges, coercive powers, procedural-fairness guidelines and protection from liability.

The Customer Service Legislation Amendment Act 2024 (No 4 of 2024) inserted the deemed-authority regime (s 19B) to reduce duplication for federally registered charities while preserving NSW enforcement oversight. It also updated departmental references (Department of Customer Service, Secretary definitions) and made minor adjustments to notification and compliance-statement provisions (ss 24A, 24B).

These changes reflect a policy shift from purely licensing-based regulation to risk-based, responsive enforcement that aligns with national charity regulation, strengthens deterrence through civil sanctions and public accountability, and equips the regulator to respond swiftly to emerging scandals.

Because the legislation is largely administrative and regulatory, reported case law is sparse and tends to arise in NCAT or Supreme Court proceedings rather than appellate courts. NCAT decisions have examined the breadth of the “fit and proper person” test (s 16(1)), the Secretary’s discretion to refuse renewal where past compliance has been marginal (s 18A(3)), and whether particular appeals fall within the s 5(3) exclusions (workplace, membership, religious). No reported superior-court authority has yet settled the precise boundaries of “charitable purpose” under the Act’s inclusive definition, although the ordinary equitable meaning of charity is assumed to inform the outer limits.

Controversies have largely played out in the media and through public inquiries rather than litigation. The 2017–2018 RSL inquiry (reconstituted as a public inquiry under the new Part 3A—see Schedule 2 cl 3) exposed millions of dollars in expenditure on alcohol, entertainment and travel that donors believed was going to veterans’ welfare. The inquiry’s findings led to resignations, governance overhaul and calls for stronger board-remuneration restrictions (now contained in s 48). Similar scrutiny has fallen on certain church-affiliated and environmental organisations that have tested the breadth of the religious and environmental-philanthropic exemptions.

The introduction of deemed authorities in 2024 has generated debate among smaller charities concerned that federal registration will now automatically expose them to NSW enforcement without the protective filter of a separate NSW application process. Conversely, consumer advocates have criticised the retention of the trader-joint-appeal model (s 11), arguing that commercial fundraisers still retain too large a share of proceeds; the regulatory response has been to strengthen disclosure and written-agreement requirements rather than prohibit the practice.

Incidents of “chugging” (face-to-face street solicitation) and online crowdfunding campaigns that blur the line between personal appeals and charitable ones have tested the limits of s 5(1). The Department has issued guidance but no appellate court has yet ruled on whether a social-media campaign that represents funds will be used for a benevolent purpose constitutes a regulated “fundraising appeal”.

Most practitioners miss that an authority is required even if the appeal raises no money in a given year; the annual return and compliance-statement obligations continue (s 23(3), s 24B(4)). Unincorporated associations expose every governing-body member to personal strict-liability-style offences once knowledge is established; insurance rarely covers these statutory penalties.

The “lawful and proper expense” concept is not statutorily capped; instead the regulations and authority conditions supply the metric. Many organisations discover too late that lavish administration costs or payments to related commercial entities breach the authority and trigger s 20(7) personal liability.

Deemed authorities under s 19B appear convenient but remove the ability to tailor conditions at the application stage; organisations that notify the ACNC are locked into the standard NSW conditions and the Secretary’s cancellation powers. The 28-day notification obligation in s 24A is unforgiving—bankruptcy of a single trustee of an unincorporated body must be reported even if the body itself is solvent.

Public-inquiry procedural guidelines issued under s 41F are not mere suggestions; breach of a publication restriction or exclusion direction carries a criminal sanction (s 41S(2)). The protection from incrimination in s 41N is use-immunity only; derivative evidence remains admissible in revocation or civil proceedings.

Finally, the Act’s interaction with the Australian Charities and Not-for-profits Commission Act 2012 is one-way: federal registration does not confer immunity from NSW offences. A charity that loses its ACNC registration may still hold a deemed authority until the Secretary acts, creating a dangerous twilight period.

Compliance begins with a governance audit. Organisations should map every solicitation activity against the s 5 definition and confirm that an authority (or deemed authority) is in place or that a s 5(3) or s 7 exemption genuinely applies. If an authority is required, the application must address each matter in s 16(2); supporting material should demonstrate good-faith charitable purpose, proper administrative structures, fit-and-proper status of all involved persons (including criminal-history and insolvency checks), and realistic budgets showing that the majority of funds will reach the charitable object.

Written agreements with any trader or commercial fundraiser must comply with regulatory minima and be retained. All publicity must name the authority holder, the trader (if any) and disclose the intended distribution or guaranteed minimum (s 11(2)(b)–(c)). Gross receipts must be banked intact and promptly; a separate ledger for each appeal is prudent even if the regulations permit some aggregation.

Annual returns, audited accounts and the s 24B compliance statement must be lodged within six months of the financial year-end (or 30 June for non-corporates). Systems should flag notifiable events (insolvency, fraud convictions, material changes to purpose or contact details) so that the 28-day s 24A deadline is met. Records must satisfy regulatory form and retention periods; auditors should be instructed to report on compliance with the Act as well as financial accuracy.

Organisations facing regulatory attention should treat compliance notices and investigation demands as urgent; extensions are possible but not guaranteed (s 25N). Enforceable undertakings can be a pragmatic alternative to contested proceedings provided the organisation can deliver on the promised remediation. Board members of unincorporated bodies should ensure directors-and-officers insurance expressly covers statutory penalties where insurable and should maintain detailed minutes showing that compliance obligations were actively considered.

Religious bodies should obtain and retain the certificates or proclamations establishing their exempt status; if the Minister issues an overriding order under s 7(2), immediate legal advice is required. All entities should monitor the NSW Fair Trading website for updated forms, regulatory amendments and guidelines on lawful expenses. Periodic internal audits keyed to the s 16(2) criteria reduce the risk of authority suspension or cancellation and demonstrate the “reasonable steps” required for the annual compliance statement.

In high-risk environments (street collectors, online crowdfunding, events with commercial sponsors) organisations should implement contractual controls, real-time financial dashboards and staff training on the distinction between conducting and merely participating. Where doubt exists about whether an activity is caught, a pre-emptive application for authority or a written ruling from the Secretary is the safest course; the cost of compliance is almost always lower than the cost of defending a 200-penalty-unit prosecution or a public inquiry.