Fundraising Act 1998

Part 1—Preliminary matters

1 Purpose

The purpose of this Act is to regulate the raising and application of money and other benefits for non-commercial purposes from the public.

2 Commencement

(1) This section and section 1 come into operation on the day this Act receives the Royal Assent.

(2) The remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 1 July 1999, it comes into operation on that day.

S. 2A
inserted by No. 2/2009 s. 5.

2A Object

The object of this Act is to facilitate—

(a) transparency and public confidence in the fundraising industry and in not-for-profit organisations that conduct fundraising; and

(b) the protection of members of the public from whom money or a benefit is solicited for beneficial or benevolent purposes in the course of fundraising; and

(c) the protection of the public interest in relation to fundraising.

3 Definitions

In this Act—

S. 3 def. of appeal manager inserted by No. 70/2001 s. 3.

appeal manager, in relation to a fundraising appeal, means a person who has any managerial or financial responsibility for the appeal;

S. 3 def. of associate inserted by No. 70/2001 s. 3.

associate has the meaning set out in section 6A;

benefit includes any gain or reward;

commercial fundraiser means a person who is retained on a commercial basis by another person to administer all or part of a fundraising appeal for the other person;

S. 3 def. of Commis-sioner of the ACNC inserted by No. 47/2019 s. 32(a).

Commissioner of the ACNC has the same meaning as Commissioner has in the Commonwealth ACNC Act;

S. 3 def. of Common-wealth ACNC Act

Commonwealth ACNC Act means the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth;

S. 3 def. of Common-wealth registered entity

Commonwealth registered entity means an entity registered under Part 2-1 of the Commonwealth ACNC Act;

conduct a fundraising appeal has the meaning set out in section 6;

Court means the Magistrates' Court of Victoria;

S. 3 def. of deemed registered fundraiser

deemed registered fundraiser means a Commonwealth registered entity that is taken to be registered as a fundraiser under section 23AB;

designated person means the designated person named by an incorporated association or an unincorporated organisation under section 18 or 64;

S. 3 def. of Director inserted by No. 70/2001 s. 3, amended by Nos 30/2003 s. 86, 21/2012 s. 239(Sch. 6 item 17.1).

Director means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;

S. 3 def. of disqualifying offence inserted by No. 70/2001 s. 3.

disqualifying offence means—

(a) an offence involving fraud, dishonesty, violence or drug trafficking that is punishable by imprisonment for 3 months or more in the case of a natural person, or by a fine of $10 000 or more in the case of a body corporate; or

(b) an offence under this Act;

S. 3 def. of externally-administered body corporate inserted by No. 70/2001 s. 3.

externally-administered body corporate has the same meaning as in the Corporations Act;

fundraising appeal has the meaning set out in section 5;

S. 3 def. of insolvent under administration inserted by No. 70/2001 s. 3, repealed by No. 4/2008 s. 32(Sch. item 11).

S. 3 def. of inspector substituted by No. 17/1999 s. 33(1), amended by No. 21/2012 s. 239(Sch. 6 item 17.2).

inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;

participate in a fundraising appeal means to solicit or receive any money or benefit for the purposes of the appeal;

S. 3 def. of public place amended by Nos 24/2006 s. 6.1.2(Sch. 7 item 20.1), 43/2012 s. 3(Sch. item 21).

public place means—

(a) any public highway, road, street, bridge, footway, footpath, court, alley, passage or thoroughfare even though it may be formed on private property;

(b) any park, garden, reserve or other place of public recreation or resort;

(c) any railway station, platform or carriage;

(d) any wharf, pier or jetty;

(e) any passenger ship or boat to which the public has access;

(f) any public vehicle;

(g) any market;

(h) any auction room or place while a sale by auction is being conducted there;

(i) any place of public resort; or

(j) any open place to which the public whether upon or without payment for admittance have, or are permitted to have, access—

but does not include—

(k) any Government school or non-Government school within the meaning of the Education and Training Reform Act 2006 or any related land or premises;

(l) any land or premises owned or occupied by a university, TAFE institute or other tertiary educational institution;

(m) any land or premises owned or occupied by a registered funded agency within the meaning of the Health Services Act 1988;

(n) any church, chapel or other premises or related land that is owned or occupied by a religious organisation;

S. 3 def. of register inserted by No. 70/2001 s. 3.

register means the register required by section 70A;

S. 3 def. of registered fundraiser inserted by No. 70/2001 s. 3.

registered fundraiser means a person who is registered as a fundraiser by the Director under Division 2 of Part 3;

registrar means registrar of the Court;

religious organisation means an organisation in respect of which a Proclamation is in force under section 26 of the Marriage Act 1961 of the Commonwealth;

S. 3 def. of responsible person inserted by No. 70/2001 s. 3.

responsible person means the responsible person named for the purposes of section 64A by an incorporated person under section 18(2)(k) or 64B;

retention period means a period of 45 days after the seizure of a thing under Part 5;

Secretary means the Secretary to the Department of Justice;

S. 3 def. of un-incorporated organisation
amended by No. 47/2019 s. 32(b).

unincorporated organisation means a group of persons who—

(a) conduct an activity under a common name; and

(b) maintain a list of members in relation to the conduct of that activity.

4 Reference provisions

(1) A reference to a person in this Act includes a reference to an incorporated association and to each member of an unincorporated organisation.

(2) Despite subsection (1), a reference to a person in any provision creating an offence under this Act does not include a reference to a member of an unincorporated organisation unless it can be proved that the member instigated or actively engaged in, or consented to, the conduct that constitutes the offence, or that the offence was attributable to any wilful neglect by the member.

(3) For the purposes of this Act, a person is not a member of an unincorporated organisation unless she or he has consented to being a member of the organisation.

(4) A reference to a party in relation to a court proceeding is, in the case of an incorporated association or an unincorporated organisation, a reference to the designated person of that association or organisation.

(5) A reference in this Act—

(a) to "she or he", "he or she", "her or him" or "him or her" is to be read as including a reference to "it"; and

(b) to "her or his" or "his or her" is to be read as including a reference to "its"—

if the context permits.

(6) A reference in this Act to "this Act" includes a reference to the regulations.

S. 4(7) inserted by No. 70/2001 s. 4.

(7) A reference in this Act to being found guilty of an offence includes a reference to having a charge of committing that offence found proven.

S. 4(8) inserted by No. 70/2001 s. 4.

(8) A reference in this Act to an offence under this Act, in relation to a finding of guilt, includes a reference to an offence under the Fundraising Appeals Act 1984.

S. 4(9) inserted by No. 70/2001 s. 4,
amended by No. 47/2019 s. 33.

(9) A reference in this Act to the registration of a person as a fundraiser includes a reference to the deemed registration of the person as a fundraiser under section 21, 33M or 77.

S. 4(10) inserted by No. 70/2001 s. 4.

(10) A reference to assets obtained as a result of a fundraising appeal includes, in so far as the reference relates to a particular point of time, a reference to any assets that are received in relation to the appeal after that time.

S. 4(11) inserted by No. 70/2001 s. 4.

(11) The provisions of this section are subject to any contrary intention in any other section of this Act.

5 Meaning of *fundraising appeal*

(1) A fundraising appeal occurs if a person solicits or receives money or a benefit on the basis of a representation that the soliciting or receiving is not solely for the profit or commercial benefit of the person or any other person, cause or thing on whose behalf the person is soliciting or receiving the money or benefit.

(2) For the purposes of this section, it does not matter if—

(a) the person who solicits or receives the money or benefit does not make the representation;

(b) the representation was direct or indirect;

(c) the majority of the money or benefit is not to be applied for the benefit of the person, cause or thing on whose behalf it is solicited or received;

S. 5(2)(ca) inserted by No. 2/2009 s. 6(1).

(ca) the person who solicits or receives the money or benefit does so as an ongoing activity or in relation to a particular period of time;

(d) the person who solicits or receives the money or benefit does so as a volunteer or is paid for doing so.

(3) Despite anything to the contrary in subsection (1), the following activities are not a fundraising appeal—

(a) soliciting or receiving any money or benefit—

S. 5(3)(a)(i) amended by No. 98/2005 s. 90.

(i) for the purposes of a patriotic fund within the meaning of the Veterans Act 2005; or

S. 5(3)(a)(ii) amended by Nos 114/2003 s. 12.1.3
(Sch. 6 item 5), 47/2019 s. 34(1).

(ii) in relation to any raffle, lottery or other activity authorised or permitted under the Gambling Regulation Act 2003;

(b) soliciting a person to become a member of an organisation or to pay the joining or membership fee of an organisation;

S. 5(3)(c) substituted by No. 70/2001 s. 5.

(c) the soliciting or receipt of any money or benefit by, or on behalf of, an organisation from a person—

(i) who is, or was, a member of the organisation; or

(ii) who is in the process of becoming a member of the organisation; or

(iii) who is a relative of, or who is personally acquainted with, any person referred to in subparagraph (i) or (ii)—

even if the money or benefit is solicited or received on the basis that it will be applied for purposes other than the benefit of the organisation;

S. 5(3)(d) repealed by No. 2/2009 s. 6(2).

S. 5(3)(e) amended by No. 47/2019 s. 34(2).

(e) soliciting or receiving money or a benefit exclusively or predominantly from among persons sharing a common employer or principal or place of work if the soliciting or receiving—

S. 5(3)(e)(i) amended by No. 47/2019 s. 34(2).

(i) is carried out by one of those persons; and

S. 5(3)(e)(ii) amended by No. 47/2019 s. 34(2).

(ii) is made on the basis of a representation that the money or benefit will be applied for a benevolent or philanthropic purpose connected directly with another of those persons or with the immediate family of another of those persons;

(f) soliciting or receiving money or a benefit from—

(i) the Commonwealth, a State, a Territory, a local government body or any public authority or body created by, or that represents in any capacity, the Commonwealth, a State or a Territory;

(ii) a corporation, partnership or trust that is permitted to donate money or benefits for non-profit or non-commercial purposes by its memorandum of incorporation, articles of association, partnership agreement, trust deed or other empowering document;

(g) any other activity that the regulations state is not a fundraising appeal.

6 Meaning of *conduct* a fundraising appeal

(1) A person conducts a fundraising appeal if she or he—

(a) organises the appeal in a capacity other than that of an employee or agent; or

(b) is the sole participant in the appeal; or

(c) is one of a number of participants in the appeal, but is not participating in the appeal as an employee or agent.

(2) In determining whether a person is conducting a fundraising appeal, it does not matter whether the person is acting as a volunteer or is being paid.

S. 6(3) substituted by No. 70/2001 s. 6.

(3) If a person who conducts a fundraising appeal retains a commercial fundraiser to administer all or part of the appeal, a reference in this Act to the person conducting the appeal is a reference—

(a) to the person in respect of the appeal as a whole and of any aspect of the appeal that encompasses the appeal as a whole (such as a requirement to produce accounts relating to the appeal); and

S. 6(3)(b) amended by No. 2/2009 s. 7.

(b) to the commercial fundraiser in respect of any aspect of the appeal that is being administered by the commercial fundraiser irrespective of whether the commercial fundraiser is an agent of the person; and

(c) to the person in respect of any other aspect of the appeal.

S. 6(4) repealed by No. 70/2001 s. 6.

S. 6A
inserted by No. 70/2001 s. 7.

6A Meaning of *associate*

For the purposes of this Act, a person is an associate of another person—

(a) if the person is able, or will be able, to have a significant influence over, or with respect to, the management or operation of the fundraising activities of the other person; or

(b) in the case of another person that is a body corporate, if the person is a director, secretary or manager of the other person.

S. 6B
inserted by No. 70/2001 s. 7.

6B Interpretation of *public interest*

Without limiting the generality of the meaning of public interest, for the purposes of this Act a fundraising appeal is not conducted in the public interest if, in the opinion of the Court or the Director, as the case may be, the expenses payable in respect of the appeal in a particular period exceed a reasonable proportion of the total amount raised in that period.

Part 2—Provisions applying to all fundraising appeals

7 False statements while seeking donations

(1) In conducting or participating in a fundraising appeal, a person must not make or give any representation or oral or written statement in relation to the appeal to another person that misleads or deceives, or that is likely to mislead or deceive—

(a) the other person; or

(b) anyone else to whom the other person may make, repeat or give the representation or oral or written statement.

(2) It is a defence to a charge under subsection (1) if the person charged can show—

(a) that she or he reasonably believed that the representation or statement was not misleading or deceptive, and was not likely to mislead or deceive; or

(b) that the statement was an accurate repetition of information supplied by another person, and that the person repeating or passing on the statement had no reasonable grounds to doubt that the information was true.

(3) However, a person may not rely on the defence referred to in subsection (2)(b) unless the person gave the person bringing the charge at least 7 days before the charge is heard a notice identifying the person who supplied the information or, if that identity is not known, setting out all the information the person charged has concerning the person who supplied the information.

(4) Despite subsection (3), the court before which the charge is brought may permit a person to rely on the defence referred to in subsection (2)(b) even though the person did not give the notice required by subsection (3) at least 7 days before the charge is heard.

8 False statements to employees, agents etc. concerning compliance with the Act

A person—

(a) who is conducting or is proposing to conduct a fundraising appeal; or

(b) who is acting on behalf of a person who is conducting or is proposing to conduct a fundraising appeal—

must not represent to an employee, agent or collector (whether voluntary or otherwise) that any thing required or permitted by this Act to be done in relation to the appeal has been done if it has not been done.

9 Identification badges for collectors

(1) If a person is in the course of conducting or participating in a fundraising appeal—

(a) in a public place; or

(b) on the premises of a person from whom money or a benefit is being solicited or received without the prior invitation of that latter person—

she or he must wear an identifying badge in such a way that the entire face of the badge is at all times clearly visible.

(2) A person who is conducting a fundraising appeal must issue an identifying badge to each person participating in the appeal who is required by subsection (1) to wear an identifying badge and must ensure that the badge—

(a) prominently displays the words "Paid Collector" if the person to whom it is issued is entitled, or expects, to be paid for participating in the appeal (other than for out-of-pocket expenses);

(b) prominently displays the words "Volunteer Collector" if the person to whom it is issued is not entitled, and does not expect, to be paid for participating in the appeal (other than for out-of-pocket expenses);

(c) complies with any other requirements specified in the regulations.

10 Collection receptacles to be secure, numbered and labelled etc.

(1) A person who is conducting a fundraising appeal must ensure that any receptacles that are used to collect donations for the appeal that are in a public place—

(a) are securely constructed, properly sealed and consecutively numbered; and

(b) are clearly labelled with—

(i) the name of the appeal; or

S. 10(1)(b)(ii) amended by No. 47/2019 s. 35.

(ii) the name of the person conducting the appeal and the person or class of person or causes or things on whose behalf the appeal is being conducted.

(2) Despite subsection (1), it is not necessary for the person to ensure that a receptacle used to collect money is properly sealed if every person who puts money in the receptacle (or who gives money that is to be put in the receptacle) is given a receipt in a form authorised by the person conducting the appeal.

(3) This section does not apply to receptacles used as part of a highway collection carried out in compliance with the Road Safety Act 1986 (or any regulations made under that Act).

11 Use and emptying of receptacles to be properly supervised

(1) A person who is conducting a fundraising appeal must ensure that the use and emptying of any receptacles that are used to collect money for the appeal are supervised in a way that ensures, to the maximum extent that is practicable in the circumstances of the appeal—

(a) in the case of a fundraising appeal to which Part 3 applies, that all the money is deposited in one of the accounts referred to in section 27;

(b) in any other case, that all the money is collected and given to the person.

(2) A person who is conducting a fundraising appeal must ensure that the use and emptying of any receptacles that are used to collect donations other than money for the appeal are supervised in a way that ensures, to the maximum extent that is practicable in the circumstances of the appeal, that all the donations are collected and properly processed.

12 Exceptions to sections 10 and 11

S. 12(1) amended by No. 70/2001 s. 12(a).

(1) The obligations imposed on a person by sections 10 and 11 are subject to any contrary obligations imposed on the person by the Director under section 19C or 23.

(2) Sections 10 and 11 do not apply to receptacles used in any circumstances specified for the purposes of this subsection by the regulations.

S. 12A inserted by No. 2/2009 s. 8.

12A Portion of funds received for supply of goods or services directed to fundraising to be disclosed

(1) A person, who supplies goods or services in the course of a business and represents that a portion of the money or benefit received in relation to that supply is to be applied for a beneficial or benevolent purpose, must disclose in accordance with subsection (2) to the person to whom the goods or services are to be supplied the dollar amount or percentage amount of the money or benefit to be so applied.

In any other case, 120 penalty units.

(2) For the purposes of subsection (1), the disclosure must be made—

(a) in writing in accordance with any condition imposed under section 12B; and

(b) to the person to whom the goods or services are to be supplied before the contract in relation to that supply is entered into.

S. 12B inserted by No. 2/2009 s. 8.

12B Condition concerning manner of disclosure of portion of funds to be directed to fundraising

In the case of a registered fundraiser, without limiting section 19C or 23, the Director may impose a condition on the fundraiser's registration specifying the manner in which a disclosure must be made for the purposes of section 12A.

S. 13
repealed by No. 2/2009 s. 9.

14 Paid phone etc. canvassers must disclose that they are being paid

(1) This section applies to a person—

(a) who seeks donations to, or offers to sell anything as part of, a fundraising appeal by telephone or by any other method of spoken direct personal communication involving electronic or mechanical means; and

(b) who is entitled, or expects, to receive money or some other financial reward for participating in the appeal (other than for out-of-pocket expenses).

(2) Before seeking a donation, the person must state to the person from whom the donation is being sought—

(a) the fact that the person seeking the donation has been retained on a commercial basis to seek the donation; and

(b) the name of the person who is employing (or who has retained) the person seeking the donation; and

(c) the name of the person on whose behalf the donation is sought (if this name is different from the name required by paragraph (b)).

(3) Before offering to sell anything, the person must state to the person to whom the offer is to be made—

(a) the fact that the person making the offer has been retained on a commercial basis to make the offer; and

(b) the name of the person who is employing (or who has retained) the person making the offer; and

(c) the name of the person on whose behalf the offer is being made (if this name is different from the name required by paragraph (b)).

15 Letters etc. by commercial fundraisers must disclose certain details

(1) This section applies if a commercial fundraiser seeks donations to, or offers to sell anything as part of, a fundraising appeal by any means of communication to which section 14 does not apply.

(2) In the case of any communication by means of a document, the commercial fundraiser must ensure that the document states—

(a) that the document has been sent or distributed by the commercial fundraiser; and

(b) that the commercial fundraiser has been retained on a commercial basis to send or distribute the document.

(3) In the case of any other means of communication, the commercial fundraiser must ensure that a donation is not sought, and that an offer to sell is not made, unless any person from whom the donation is sought, or to whom the offer is made, is informed of—

(a) the fact that the communication has been made by the commercial fundraiser; and

(b) the fact that the commercial fundraiser has been retained on a commercial basis to seek the donation or make the offer by that means of communication.

S. 15A inserted by No. 2/2009 s. 10.

15A Direct debit request form

A person who conducts a fundraising appeal must ensure that any form used for the purposes of the appeal to enable donation using direct debit facilities by a person from whom money is solicited—

(a) is easily legible; and

(b) to the extent that it is printed or typed, uses a minimum 10 point font; and

(c) is clearly expressed.

In any other case, 60 penalty units.

Part 3—Provisions applying to particular fundraising appeals only

Division 1—Application of this Part

S. 16 amended by No. 70/2001 s. 8(a).

16 This Part does not apply to some organisations

Subject to section 16B, this Part does not apply to the conduct of a fundraising appeal by the following organisations—

S. 16(a) substituted by No. 24/2006 s. 6.1.2(Sch. 7 item 20.2).

(a) a Government school, a school council or a non-Government school within the meaning of the Education and Training Reform Act 2006;

S. 16(b) substituted by No. 24/2006 s. 6.1.2(Sch. 7 item 20.2).

(b) a university, TAFE institute or other tertiary educational institution;

S. 16(ba) inserted by No. 70/2001 s. 8(b), substituted by No. 19/2014 s. 91.

(ba) an early childhood service within the meaning of the Education and Training Reform Act 2006 that, to provide a preschool program, employs or engages—

(i) a registered early childhood teacher; or

(ii) a person holding a temporary approval within the meaning of the Education and Training Reform Act 2006; or

(iii) a person who is taken to be an early childhood teacher under regulation 242 of the regulations made under the Education and Care Services National Law (Victoria);

(c) a registered funded agency within the meaning of the Health Services Act 1988;

(d) a religious organisation;

S. 16(e) substituted by No. 23/2002 s. 192.

(e) a political party registered under section 50 of the Electoral Act 2002;

(f) a trade union registered under the Trade Unions Act 1958;

S. 16(g) amended by No. 74/2009 s. 13.

(g) an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

S. 16(2)–(4) repealed by No. 70/2001 s. 8(c).

S. 16A inserted by No. 70/2001 s. 9.

16A Other exemptions from this Part

(1) The Minister, by Order published in the Government Gazette—

(a) may exempt a person or organisation, or a class of person or organisation, from having to comply with all, or any provision, of this Part; and

(b) may impose conditions in relation to any exemption granted under paragraph (a).

(2) The Minister may declare, by Order published in the Government Gazette—

(a) that a specified person or organisation, or a specified sub-class of person or organisation, falls within a class created by an Order made under subsection (1);

(b) that a specified person or organisation, or a specified sub-class of person or organisation, is not exempt from this Part, even though the person, organisation or sub-class falls within a class created by an Order made under subsection (1).

(3) A declaration under subsection (2) has effect according to its tenor.

(4) If a condition applies in relation to an exemption applying to a person or organisation under this section, the exemption does not apply to the person or organisation during any period in which the person or organisation does not comply with the condition.

(5) On or before the 6th sitting day after an Order made under this section is published in the Government Gazette, the Minister must ensure that a copy of the Order is laid before each House of the Parliament.

(6) A failure to comply with subsection (5) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament.

(7) An Order made under this section may be disallowed in whole or in part by either House of Parliament.

(8) Part 5 of the Subordinate Legislation Act 1994 applies to an Order made under this section as if—

(a) a reference in that Part to a "statutory rule" was a reference to the Order; and

(b) a reference in section 23(1)(c) of that Part to "section 15(1)" was a reference to subsection (5).

S. 16B inserted by No. 70/2001 s. 9.

16B Exemption does not cover commercial fundraisers

(1) This section applies if all or part of this Part does not apply to a person or organisation as a result of section 16 or 16A.

S. 16B(2) amended by No. 2/2009 s. 11.

(2) If the person or organisation retains a commercial fundraiser to administer all or part of a fundraising appeal, this Part applies to the commercial fundraiser in respect of the appeal irrespective of whether the commercial fundraiser does so as an agent of the person or organisation.

Pt 3 Div. 2 (Heading and ss 17–24) amended by No. 52/1998 s. 311(Sch. 1 item 109.2), substituted as Pt 3 Div. 2 (Heading and ss 17–23A) by No. 70/2001 s. 10.

Division 2—Registration of fundraisers

S. 17 substituted by No. 70/2001 s. 10.

17 Meaning of *intended appeal*

In this Division, intended appeal means any fundraising appeal that a person applying to be registered as a fundraiser intends, at the time of submitting the application, to conduct if the person is registered as a fundraiser.

S. 17A inserted by No. 70/2001 s. 10.

17A Fundraisers must be registered

Subject to Division 1, a person must not conduct a fundraising appeal unless she or he is registered by the Director as a fundraiser.

In the case of a person who ceases to be exempt from this Part while the person is conducting a fundraising appeal, section 18C suspends the operation of this section for a limited period.

S. 18 substituted by No. 70/2001 s. 10.

18 Application for registration as a fundraiser

(1) A person who wishes to apply to register as a fundraiser must submit an application for registration to the Director at least 28 days before the date she or he intends to start conducting any fundraising appeal.

Section 18B enables the submission of an application for registration within 28 days of an intended appeal if there are special circumstances. In the case of a person who ceases to be exempt from this Part while the person is conducting a fundraising appeal, section 18C supplants the 28 day time limit specified in this subsection.

(2) The application must be in the form required by the Director and must state—

(a) the name of the person;

(b) if the person is a natural person, her or his residential or principal business address in Victoria;

(c) if the person is a corporation, the address in Victoria of its registered office or principal place of business;

(d) if the person is an incorporated association or an unincorporated organisation, the name and address of a natural person in Victoria appointed for the purposes of this Act as the designated person of the organisation;

(e) the name and contact details of a natural person who members of the public may contact in relation to any fundraising appeals to be conducted by the person;

(f) the name and address of any person who is, or who it is intended will be, an appeal manager for any fundraising appeals to be conducted by the person;

(g) either—

(i) the name of every person on whose behalf the person intends to conduct a fundraising appeal; or

(ii) the common features shared by the class of person for whose benefit the person intends to conduct a fundraising appeal, and the means by which the money or benefit is to be transmitted to that class or is to be distributed among the individual members of that class; or

S. 18(2)(g)(iii) amended by No. 47/2019 s. 36(1).

(iii) if any intended appeal is not to be conducted for the immediate direct benefit of one or more persons, a description of the thing or cause for which the appeal is to be conducted, and the means by which the money or benefit will be applied to the thing or cause;

(h) with respect to any intended appeal—

(i) whether the person is to derive any money or benefit from the appeal;

(ii) the date on which it is intended to conduct, or start, the appeal;

(iii) the form of the appeal;

(i) if applicable, details (including the number) of the account that the person intends to use for the purposes of section 27(2);

(j) if the person has retained, or intends to retain, a commercial fundraiser or other person to administer part or all of an intended appeal, the name and address of that commercial fundraiser or other person;

(k) if the person is an incorporated association that was not incorporated in Victoria, the name and address of a person appointed for the purposes of this Act as the responsible person of the association;

(l) any other information required by the Director for the purposes of this Part.

Paragraph (l) would, for instance, enable the Director to seek information in an application about associates of the person submitting the application to enable the Director to determine whether grounds for refusing the application exist under section 19B(3).

S. 18(3) amended by No. 47/2019 s. 36(2).

(3) A number of persons who are not an unincorporated organisation may combine to be registered as a fundraiser.

S. 18(4) amended by No. 47/2019 s. 36(3).

(4) If a number of persons combine to be registered as a fundraiser—

S. 18(4)(a) amended by No. 47/2019 s. 36(4).

(a) the application must contain the name and address of each person; and

(b) they are deemed to be an unincorporated organisation.

(5) The Director may modify the requirements of subsection (2) to enable a person who is an organisation that is divided into a number of divisions or branches or other sub-groups to apply to register as a fundraiser without providing all the details required by that subsection in relation to any person acting on behalf of a division, branch or sub-group.

(6) In the case of an application by a person who is an incorporated association that was not incorporated in Victoria, the application must be accompanied by the consent required by section 64A(3) signed by the person appointed as the responsible person of the association.

S. 18A inserted by No. 70/2001 s. 10.

18A Consent of intended beneficiaries also needed

(1) An application for registration as a fundraiser must be accompanied by—

(a) the written consent to an intended appeal of each intended beneficiary of the appeal; or

(b) a written explanation of why it is not practicable to comply with paragraph (a).

(2) If the intended beneficiaries of an intended appeal are the members of an organisation, the written consent of a duly authorised representative of the organisation is sufficient compliance with subsection (1)(a) with respect to the members of the organisation.

(3) For the purposes of this section, a person who will conduct or administer an intended appeal is not a beneficiary of the appeal unless the person is listed under section 18(2)(g)(i) or falls within a class described under section 18(2)(g)(ii).

S. 18B inserted by No. 70/2001 s. 10.

18B Urgent applications

(1) Despite section 18(1), a person may apply to register as a fundraiser less than 28 days before the date she or he intends to start conducting any fundraising appeal if there are special circumstances.

(2) In addition to the information required by section 18, an application submitted under this section must set out those special circumstances.

S. 18C inserted by No. 70/2001 s. 10.

18C Application if exemption ceases to apply

(1) This section applies if a person who was exempt from this Part ceases to be exempt while the person is conducting a fundraising appeal.

(2) The person must apply to be registered as a fundraiser within—

(a) 28 days after the exemption ceases to apply if the cessation is the result of the making of a new Order under section 16A; or

(b) in any other case, 28 days after the person becomes aware that the exemption no longer applies, or will no longer apply (whichever occurs first).

(3) Section 17A does not apply to the person until the expiry of the relevant period in subsection (2).

(4) For the purposes of this section, section 18(1) is to be read as if "at least 28 days before the date she or he intends to start conducting any fundraising appeal" was omitted.

(5) Sections 18(2), 18A, 19B and 19C apply to an application for registration to which this section applies as if a reference in those sections to a fundraising appeal to be conducted, or that it is intended to conduct, or to an intended appeal, included a reference to the appeal that the person is conducting.

(6) Section 19A(2) applies to an application for registration to which this section applies as if a reference in section 19A(2) to a fundraising appeal that a person may conduct included a reference to the appeal that the person is conducting.

(7) Section 19B(4) does not apply to an application for registration to which this section applies.

S. 18D inserted by No. 70/2001 s. 10.

18D Information concerning applications

(1) The Director may, within 21 days after receiving an application for registration, seek further information in relation to the application from the person who submitted the application.

(2) If the Director seeks further information from a person under subsection (1), the Director may, within 14 days of receiving the information, seek further information in relation to the application from the person.

S. 18E inserted by No. 70/2001 s. 10.

18E Director may obtain information from Chief Commissioner of Police

(1) On receiving an application for registration, the Director may ask the Chief Commissioner of Police to give the Director information concerning—

(a) the criminal record, if any, of—

(i) any person named in the application; and

(ii) any person the Director believes, on reasonable grounds, may be an associate of the person who submitted the application; and

(b) any other matter in relation to the application on which the Chief Commissioner may have information.

(2) The Chief Commissioner must, not more than 14 days after receiving such a request, give the requested details to the Director.

(3) The Chief Commissioner must comply with a request made under subsection (1)(a)(ii) if the Director states that she or he believes that she or he has reasonable grounds for making the request.

S. 18F inserted by No. 70/2001 s. 10.

18F Consent to disclosure of information may be required

(1) The Director may require a person submitting an application for registration to provide the Director with any consent required by another person or body to enable the Director to obtain from the other person or body information to check or confirm any information set out in the application.

(2) A reference in this Part to seeking further information in relation to an application includes a reference to requiring the provision of any consent referred to in subsection (1).

(3) A reference to a consent in this section includes a reference to the consent of a person other than the person submitting the application.

Subsection (3), would, for instance, enable the Director to require a person submitting an application to obtain the consent to a criminal record check of a person whom the Director believes on reasonable grounds is an associate of the person before the Director makes a final decision on whether or not to grant the application.

S. 19 substituted by No. 70/2001 s. 10.

19 Registration as a fundraiser

On receiving an application for registration from a person and after making any enquiries the Director considers to be appropriate, the Director may—

(a) register the person as a fundraiser; or

(b) refuse to register the person as a fundraiser.

S. 19A inserted by No. 70/2001 s. 10.

19A Registration to be refused in certain cases

(1) The Director must not register a person as a fundraiser if the person, or any person named in the application as an appeal manager—

(a) is an insolvent under administration or is an externally-administered body corporate; or

(b) has been found guilty of a disqualifying offence within the 10 years immediately before the application for registration was lodged; or

S. 19A(1)(c) amended by No. 13/2019 s. 221(Sch. 1 item 17).

(c) is a represented person within the meaning of the Guardianship and Administration Act 2019; or

(d) was an appeal manager for a fundraising appeal within the 10 years immediately before the application for registration was lodged that was conducted by a person who was found guilty of a disqualifying offence within that period.

(2) The Director must not register a person as a fundraiser if, in the opinion of the Director, there are reasonable grounds to suspect—

(a) that the person (or any person named in the application who may be involved in any fundraising appeal that the person may conduct) will not comply with any provision of this Act in relation to any fundraising appeal that the person may conduct; or

(b) that any fundraising appeal that the person may conduct will not be conducted or administered in good faith for the purposes stated to those from whom money will be sought; or

(c) that any fundraising appeal that the person may conduct will be contrary to the public interest.

(3) Despite subsection (1), the Director may register a person as a fundraiser even though the person or an appeal manager falls within a category described in subsection (1)(b) or (1)(d) if the Director is satisfied that circumstances exist that make it appropriate to register the person.

(4) Despite subsection (3), the Director must not register a person as a fundraiser if the person or an appeal manager has been found guilty of an offence under this Act within the 10 years immediately before the application for registration was lodged.

S. 19B inserted by No. 70/2001 s. 10.

19B Director may refuse registration in certain cases

(1) The Director may refuse to register a person as a fundraiser if, in the opinion of the Director—

(a) the application for registration contains false or misleading information; or

(b) there are significant omissions in the application for registration or the application is incomplete in a significant way; or

(c) the explanation of why the consent of a beneficiary of an intended appeal has not been supplied is not adequate or satisfactory; or

(d) in the case of an intended appeal on behalf of a class of beneficiary, the description of the class is too vague, or the class is insufficiently identified.

(2) The Director may refuse to register a person as a fundraiser if any person named in the application as an appeal manager is not, in the opinion of the Director, a fit and proper person to be associated with a fundraising appeal.

(3) The Director may refuse to register a person as a fundraiser if any associate of the person—

(a) is an insolvent under administration or is an externally-administered body corporate; or

(b) has been found guilty of a disqualifying offence within the 10 years immediately before the application for registration was lodged; or

(c) is not, in the opinion of the Director, a fit and proper person to be associated with a fundraising appeal; or

(d) was an appeal manager for a fundraising appeal within the 10 years immediately before the application for registration was lodged that was conducted by a person who was found guilty of a disqualifying offence within that period.

(4) The Director may refuse to register a person as a fundraiser—

(a) if the application for registration is submitted less than 28 days before the date the person intends to start conducting a fundraising appeal; or

(b) if the person complies with section 18B, if the Director is of the opinion that there are no special circumstances.

S. 19C inserted by No. 70/2001 s. 10, amended by No. 2/2009 s. 12 (ILA s. 39B(1)).

19C Conditions on registration

(1) In registering a person as a fundraiser, the Director may impose conditions on the person in relation to the conduct by the person—

(b) of any intended appeal.

S. 19C(2) inserted by No. 2/2009 s. 12.

(2) The Director, from time to time, may issue guidelines relating to the imposition of conditions under subsection (1).

S. 19C(3) inserted by No. 2/2009 s. 12.

(3) The Director—

(a) must publish the guidelines in the Government Gazette; and

(b) may publish the guidelines on the Internet.

S. 19C(4) inserted by No. 2/2009 s. 12.

(4) The guidelines take effect on the date of publication in the Government Gazette or such later date as is specified in the guidelines.

S. 20 substituted by No. 70/2001 s. 10.

20 Duration of registration

(1) The registration of a person as a fundraiser remains current—

S. 20(1)(a) amended by No. 2/2009 s. 13(1).

(a) for 3 years from the date of registration; or

S. 20(1)(ab) inserted by No. 2/2009 s. 13(2).

(ab) in the case of a person whose last registration was reduced under section 20AAA, for any shorter period specified by the Director in a written notice given to the person on registration; or

(b) for any longer period specified by the Director in a written notice given to the person on registration—

unless the person is deregistered in accordance with this Act before that period expires.

(2) The Director may not specify a period under subsection (1)(b) that is more than 5 years after the date of registration.

S. 20(3) amended by No. 2/2009 s. 13(1).

(3) The registration of a person who is deemed to be registered as a fundraiser under section 21 remains current for 3 years from the date the registration is deemed to occur, unless the person is deregistered in accordance with this Act before that period expires.

S. 20AAA inserted by No. 2/2009 s. 14.

20AAA When duration of registration may be reduced

Despite section 20, the Director may reduce the duration of a person's registration as a fundraiser if the Director is satisfied, in relation to a fundraising appeal being conducted by the person, that the person (or any person assisting the person to conduct or administer the appeal) has failed, with respect to the appeal, to comply with—

(a) any provision of this Act; or

(b) any condition specified by the Director under section 12B, 19C or 23.

S. 20AA inserted by No. 2/2009 s. 14.

20AA Process for reducing duration of registration

(1) Before reducing the duration of a person's registration as a fundraiser under section 20AAA, the Director—

(a) must give the person a written notice—

(i) stating that the Director is considering whether to reduce the duration of the person's registration and the reasons why the Director is considering doing so; and

(ii) inviting the person to make, within the time specified in the notice, a submission in relation to whether or not the Director should reduce the duration of the person's registration; and

(b) must consider any submission made by the person within the specified time.

(2) The Director must not specify a period of less than 7 days for the purposes of subsection (1)(a)(ii).

(3) If the Director decides to reduce the duration of the person's registration after considering any submission referred to in subsection (1)(b), the Director must give the person a second written notice stating that the duration of the registration is reduced.

(4) The Director must not, under subsection (3), specify a date on which the person's registration is to end that is less than 28 days after the date on which notice under that subsection was given to the person.

S. 20A inserted by No. 70/2001 s. 10.

20A Details of registration to be given in the register

(1) On registering a person as a fundraiser, the Director must ensure that the details of the registration required by the regulations are placed in the register.

(2) The Director must specify in the register the period for which the registration is to remain current.

S. 21 substituted by No. 70/2001 s. 10.

21 Deemed registration if no response within 21 days

(1) The Director is deemed to register a person as a fundraiser if—

(a) the person applied to be registered as a fundraiser in accordance with this Division; and

(b) the Director does not, within 21 days after receiving that application, seek further information under section 18D(1) or refuse to register the person as a fundraiser.

(2) The Director is also deemed to register a person as a fundraiser if—

(a) the person applied to be registered as a fundraiser in accordance with this Division; and

(b) the Director seeks further information from the person under section 18D(1); and

(c) the person gives the Director the further information sought by the Director; and

(d) the Director does not, within 14 days after receiving that information, give the person notice of any action taken by the Director under section 18D(2) or 19.

S. 22 substituted by No. 70/2001 s. 10.

22 Renewal of registration

(1) A person may apply to the Director to renew the person's registration as a fundraiser.

(2) The application—

(a) must be submitted to the Director at least 28 days before the person's registration is due to expire; and

(b) must contain any information or consents required by the regulations.

S. 22(3) amended by No. 2/2009 s. 15.

(3) Sections 18D, 18E, 18F, 19, 19A, 19B, 19C, 20, 20AAA, 20AA, 20A and 21 apply—

(a) to an application for the renewal of registration as if it was an application for registration; and

(b) as if a reference to the date of registration was a reference to the date of renewal of registration; and

(c) as if a reference to registration was a reference to renewal of registration.

S. 23 substituted by No. 70/2001 s. 10.

23 Director may impose conditions at any time

(1) At any time after registering a person as a fundraiser, the Director may impose conditions on the person in relation to the conduct by the person—

(b) of any fundraising appeal being conducted, or to be conducted, by the person.

(2) The Director may impose a condition that has immediate effect if, in the opinion of the Director, there is a significant risk that an act or omission may occur that is significantly contrary to the public interest if the condition did not take effect immediately.

(3) To impose a condition under this section in any other circumstances, the Director—

(a) must give the registered fundraiser a written notice—

(i) setting out the conditions the Director wishes to impose and the reasons why the Director wishes to impose the conditions; and

(ii) inviting the registered fundraiser to comment on the proposed conditions within a time specified in the notice; and

(b) must consider any comments made by the registered fundraiser within the specified time; and

(c) if the Director decides to impose the conditions after considering the comments, must give the registered fundraiser a second written notice setting out the conditions and stating that the conditions apply from the date specified in the notice.

(4) The Director must not specify a period of less than 7 days for the purposes of subsection (3)(a)(ii).

(5) The Director must not, under subsection (3)(c), specify a date that is before the date the notice under that subsection is given to the registered fundraiser.

(6) The Director may specify conditions in the notice given under subsection (3)(c) that differ from the conditions set out in the notice given under subsection (3)(a) if the differences result from complying with any request made under subsection (3)(b) or if the differences are of a minor nature.

S. 23A inserted by No. 70/2001 s. 10.

23A Condition concerning distribution of proceeds

Without limiting section 19C or 23, the Director may impose a condition requiring that a registered fundraiser must ensure that either in any specified period, or over the course of a fundraising appeal, a specified percentage of the proceeds of the appeal must be distributed to the beneficiaries of the appeal.

Pt 3 Div. 2AA (Heading and ss 23AB–23AI)
inserted by No. 47/2019 s. 37.

Division 2AA—Commonwealth registered entities

S. 23AB inserted by No. 47/2019 s. 37.

23AB Effect of Commonwealth registration

(1) If a Commonwealth registered entity gives a notice to the Director of its intention to conduct a fundraising appeal in Victoria, the Director is taken to have registered the entity as a fundraiser under section 19.

(2) A notice under subsection (1) must be in the form approved by the Director.

(3) A Commonwealth registered entity is taken to be registered as a fundraiser under this section on and from the date on which the Director receives a notice under subsection (1).

(4) Divisions 1, 2, 2A and 7 of this Part do not apply to a deemed registered fundraiser.

S. 23AC inserted by No. 47/2019 s. 37.

23AC Duration of deemed registration

The registration of a deemed registered fundraiser remains in force until—

(a) the Director deregisters the deemed registered fundraiser under section 33N; or

(b) the deemed registered fundraiser's registration under Part 2-1 of the Commonwealth ACNC Act is revoked.

S. 23AD inserted by No. 47/2019 s. 37.

23AD Notification of changes

(1) If a deemed registered fundraiser retains a commercial fundraiser to administer all or part of a fundraising appeal, the deemed registered fundraiser must notify the Director in writing within 28 days after entering into the retention agreement with the commercial fundraiser.

(2) A deemed registered fundraiser must notify the Director in writing within 28 days after becoming aware of the occurrence of the following events—

(a) the deemed registered fundraiser becomes an insolvent under administration or an externally-administered body corporate; or

(b) the deemed registered fundraiser is found guilty of a disqualifying offence.

S. 23AE inserted by No. 47/2019 s. 37.

23AE Conditions on deemed registration

(1) At any time after receiving a notice under section 23AB, the Director may impose or vary a condition on a deemed registered fundraiser in relation to the conduct by the deemed registered fundraiser—

(b) of any fundraising appeal being conducted, or to be conducted, by the deemed registered fundraiser.

(2) The Director may impose a condition that has immediate effect if, in the opinion of the Director, there is a significant risk that an act or omission may occur that is significantly contrary to the public interest if the condition did not take effect immediately.

(3) Unless subsection (2) applies, the Director—

(i) setting out the conditions the Director wishes to impose or vary and the reasons why the Director wishes to impose or vary the conditions; and

(ii) inviting the deemed registered fundraiser to comment on the proposed conditions within a time specified in the notice; and

(b) must consider any comments made by the deemed registered fundraiser within the specified time.

(4) The Director must not specify a period of less than 7 days in a notice given under subsection (3)(a).

(5) If the Director decides to impose or vary a condition after considering any comments, the Director must give the deemed registered fundraiser a second written notice setting out the conditions and stating that the conditions apply from the date specified in the notice.

(6) For the purposes of subsection (5), the Director must not specify a date before the date on which a notice under that subsection is given to the deemed registered fundraiser.

(7) The Director may impose or vary a condition in a notice given under subsection (5) that differs from the conditions set out in a notice given under subsection (3)(a) if—

(a) the differences result from complying with any comments made under subsection (3)(b); or

(b) the differences are of a minor nature.

(8) Any guidelines issued under section 19C apply to conditions imposed under this section on a deemed registered fundraiser.

(9) Section 23A applies to a deemed registered fundraiser as if—

(b) a reference to section 19C or 23 were a reference to this section.

(10) The Director, by written notice to the deemed registered fundraiser, may revoke any condition imposed under this section.

S. 23AF inserted by No. 47/2019 s. 37.

23AF Application of this Act to deemed registered fundraisers

(1) Part 2 applies to a deemed registered fundraiser as if—

(b) a reference to conditions or obligations imposed under section 19C or 23 were a reference to a condition imposed under section 23AE; and

(c) a reference to the fundraiser's registration were a reference to the fundraiser's deemed registration under section 23AB.

(2) Division 3 of Part 3 applies to a deemed registered fundraiser as if—

(b) a reference to a condition or an obligation imposed under section 19C or 23 were a reference to a condition imposed under section 23AE; and

(c) a reference to details given under section 18 or 22 were a reference to information notified under section 23AB; and

(d) in section 26(3), in the definition of beneficiary, paragraph (a) reads—

"(a) any person, thing, cause or class of person for which the deemed registered fundraiser intends to conduct a fundraising appeal that is notified to the Director under section 23AB;".

(3) Division 4 of Part 3 applies to a deemed registered fundraiser as if—

(a) a reference to a person who is deregistered as a fundraiser under Division 7 were a reference to an entity that is deregistered as a deemed registered fundraiser under Division 7A; and

(b) a reference to an intended beneficiary were a reference to any person, thing, cause or class of person for which the deemed registered fundraiser intends to conduct a fundraising appeal that is notified to the Director under section 23AB.

(4) Section 34 applies to a deemed registered fundraiser as if—

(a) a reference to registration obtained under this Act were a reference to a deemed registration obtained under section 23AB; and

(b) a reference to a registered fundraiser were a reference to a deemed registered fundraiser.

(5) Section 61A applies to a deemed registered fundraiser as if a reference to deregistration as a fundraiser were a reference to deregistration as a deemed registered fundraiser.

(6) Section 70A applies to a deemed registered fundraiser as if a reference to registered fundraisers were a reference to deemed registered fundraisers.

(7) Section 74 applies to a deemed registered fundraiser as if a reference to registered fundraisers were a reference to deemed registered fundraisers.

S. 23AG inserted by No. 47/2019 s. 37.

23AG Suspension of deemed registration

(1) The Director may suspend a deemed registration of a Commonwealth registered entity under section 23AB if the Director is satisfied that—

(a) the deemed registered fundraiser has contravened a provision of this Act; or

(b) the proceeds of an appeal conducted by the deemed registered fundraiser in Victoria have been mismanaged or misapplied; or

(c) the deemed registered fundraiser has paid an excessive commission or other remuneration to a collector or commercial fundraiser that administers part or all of an appeal in Victoria on behalf of the deemed registered fundraiser; or

(d) the deemed registered fundraiser has contravened a condition imposed on its deemed registration by the Director; or

(e) any other circumstances exist that justify the suspension.

(2) Before suspending a deemed registration under subsection (1), the Director—

(i) stating that the Director is considering whether to suspend the deemed registration and the reasons why the Director is considering doing so; and

(ii) inviting the deemed registered fundraiser to make a submission on the proposed suspension within a time specified in the notice; and

(b) must consider any submission made by the deemed registered fundraiser within the specified time.

(3) The Director must not specify a period of less than 7 days in a notice given under subsection (2)(a).

(4) If the Director decides to suspend a deemed registration of a Commonwealth registered entity after considering a submission under subsection (2)(a)(ii), the Director must give the deemed registered fundraiser a second written notice which states—

(a) that the registration of the deemed registered fundraiser is suspended and the reasons for the suspension; and

(b) when the suspension begins; and

(c) the period of the suspension; and

(d) any conditions to which the suspension is subject.

(5) A date specified under subsection (4)(b) must not be less than 28 days after the date on which the notice under subsection (4) is given to the deemed registered fundraiser.

(6) A suspension under this section remains in force until—

(a) the end of the period specified by the Director in subsection (4)(c); or

(b) the Director gives notice that the suspension has ended.

S. 23AH inserted by No. 47/2019 s. 37.

23AH Action to be taken on suspension

(1) If the Director suspends a Commonwealth registered entity's deemed registration under section 23AG, the entity must cease any fundraising activities that the entity was undertaking in Victoria immediately before the suspension took effect.

(2) If the Director suspends a Commonwealth registered entity's deemed registration under section 23AG, the entity must not undertake any new fundraising activities in Victoria.

(3) If the Director suspends a Commonwealth registered entity's deemed registration under section 23AG, the entity must give the Director an inventory of the assets of any fundraising appeal being conducted in Victoria by the entity within 3 working days after the suspension takes effect.

(4) If the Director suspends a Commonwealth registered entity's deemed registration under section 23AG, the entity must not, without the Director's written consent, pay out or otherwise distribute or deal with any asset obtained as a result of any fundraising appeal conducted in Victoria during the period of its deemed registration.

S. 23AI inserted by No. 47/2019 s. 37.

23AI Disclosure of information relating to Commonwealth registered entities

The Director may enter into an agreement with the Commissioner of the ACNC in relation to—

(a) the manner in which a Commonwealth registered entity provides information for the purposes of this Act; and

(b) the provision of information obtained under the Commonwealth ACNC Act to the Director for the purposes of this Act.

Pt 3 Div. 2A (Heading and ss 24–24D) inserted by No. 70/2001 s. 10.

Division 2A—Notification of changes

S. 24 substituted by No. 70/2001 s. 10.

24 Change of appeal manager to be notified

(1) In this section, a notifiable event occurs if—

(a) a person listed in an application under section 18 or 22 as being an appeal manager for a registered fundraiser ceases to be an appeal manager for any appeal being conducted by the registered fundraiser; or

(b) it becomes apparent that a person listed in an application under section 18 or 22 as being a person who it is intended will be an appeal manager for an appeal will not be an appeal manager for the appeal; or

(c) a person (other than a person listed under section 18 or 22 as a person who it is intended will be an appeal manager for an appeal) becomes an appeal manager for an appeal being conducted by a registered fundraiser; or

(d) an appeal manager for an appeal being conducted by a registered fundraiser ceases to be an appeal manager for any appeal being conducted by the registered fundraiser.

(2) The registered fundraiser must notify the Director in writing of the occurrence of a notifiable event within 28 days after the occurrence of the event.

S. 24A inserted by No. 70/2001 s. 10.

24A Retention of commercial fundraiser to be notified

(1) This section applies if a registered fundraiser retains a commercial fundraiser to administer all or part of a fundraising appeal and the retention of that commercial fundraiser has not been mentioned in any application submitted by the registered fundraiser under section 18 or 22.

(2) The registered fundraiser must notify the Director in writing of the retention of the commercial fundraiser within 28 days after entering into the retention agreement with the commercial fundraiser.

S. 24B inserted by No. 70/2001 s. 10.

24B Bankruptcy, convictions etc. to be notified

(1) In this section, a notifiable event occurs if at any time after a registered fundraiser is registered, or has her or his registration renewed—

(a) she or he, or an appeal manager of the appeal—

(i) becomes an insolvent under administration or an externally-administered body corporate; or

(ii) is found guilty of a disqualifying offence; or

S. 24B(1)(a)(iii) amended by No. 13/2019 s. 221(Sch. 1 item 17).

(iii) becomes a represented person within the meaning of the Guardianship and Administration Act 2019;

(b) one of her or his associates—

(i) becomes an insolvent under administration or an externally-administered body corporate; or

(ii) is found guilty of a disqualifying offence;

(c) she or he becomes associated with an associate who—

(i) is an insolvent under administration or is an externally-administered body corporate; or

(ii) has been found guilty of a disqualifying offence.

(2) The registered fundraiser must notify the Director in writing of the occurrence of a notifiable event—

(a) within 28 days after the occurrence of the event; or

(b) if the registered fundraiser only becomes aware of the occurrence of a notifiable event described in subsection (1)(a) in relation to an appeal manager, or in subsection (1)(b), after it occurs, within 28 days after becoming aware that the event has occurred.

S. 24C inserted by No. 70/2001 s. 10.

24C Addition of beneficiaries to be notified

(1) This section applies if a registered fundraiser decides to conduct a fundraising appeal for the benefit of any person, thing, cause or class of person not previously listed as a beneficiary by the registered fundraiser under section 18(2)(g) or 22 when applying for registration, or the renewal of registration, or under this section.

(2) At least 28 days before conducting any fundraising appeal on behalf of the person, thing, cause or class, the registered fundraiser—

(a) must notify the Director in a form and manner approved by the Director of the additional person, thing, cause or class; and

(b) must give the Director—

(i) the written consent of the additional beneficiary to becoming an intended beneficiary of the appeal; or

(ii) a written explanation of why it is not practicable to comply with subparagraph (i).

(3) If the intended beneficiaries of an appeal are the members of an organisation, the written consent of a duly authorised representative of the organisation is sufficient compliance with subsection (2)(b)(i) with respect to the members of the organisation.

(4) The Director may waive the 28 day requirement in subsection (2) in a particular case if the Director is satisfied that it is reasonable to do so.

S. 24D inserted by No. 70/2001 s. 10.

24D Change of contact person to be notified

(1) In this section contact person means the natural person who is notified as the contact person for a fundraiser under section 18(2)(e) or under subsection (2)(b).

(2) If the person nominated as the contact person for a registered fundraiser ceases to act as the contact person, the registered fundraiser—

(a) must appoint another person to act as the contact person as soon as is practicable; and

(b) must notify the Director in writing within 7 days of the name and address of the person appointed.

Division 3—Conduct of appeals

S. 25 substituted by No. 70/2001 s. 11.

25 Appeals must be conducted in accordance with conditions imposed and details given

(1) In conducting a fundraising appeal, a registered fundraiser must ensure that the appeal is conducted in accordance with—

(a) any conditions specified by the Director under section 19C or 23; and

(b) any details given to the Director under section 18 or 22 concerning the conduct of a fundraising appeal (unless a relevant detail no longer applies as a result of a condition specified by the Director or the Director has agreed in writing to the variation or omission of the relevant detail).

(2) If the Director has sought further information under section 18D, a reference to any details given under section 18 or 22 is to be read as a reference to those details as varied by the further information.

S. 26 substituted by No. 70/2001 s. 11.

26 Proceeds may only be given to beneficiaries

(1) A person conducting a fundraising appeal must not give, and must not authorise or permit any other person to give, any of the net proceeds of the appeal to any person, cause or thing who is not a beneficiary of the appeal, unless otherwise permitted by the Director under subsection (2) or ordered by the Court under section 35A.

(2) On the application of a person conducting a fundraising appeal, the Director may permit the person to give part of the net proceeds of the appeal to a person who is not a beneficiary if the Director is of the opinion that there are special circumstances.

(3) In this section—

beneficiary, in relation to a fundraising appeal, means—

(a) any person, thing, cause or class of person listed as a beneficiary under section 18(2)(g) or 22 by the person conducting the appeal when applying for registration, or the renewal of registration, as a fundraiser or under section 24C(2);

(b) any person who is acting on behalf of such a person, thing, cause or class of person;

net proceeds, in relation to a fundraising appeal, means the proceeds of the appeal other than those that have been used to pay any of the expenses of conducting the appeal.

27 All appeal money must be banked

(1) This section applies if any money received in the course of a fundraising appeal is not deposited in an account held in the name of the sole intended beneficiary of the appeal.

(2) A person who is conducting a fundraising appeal must ensure that any money received in the course of the appeal is deposited in an account—

(a) that is used exclusively for money received in the course of fundraising appeals and that is held at—

S. 27(2)(a)(i) substituted by No. 11/2001 s. 3(Sch. item 28).

(i) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; or

S. 27(2)(a) (ii)(iii)
repealed by No. 11/2001 s. 3(Sch. item 28).

(iv) any institution that is in a class of institution that is authorised for the purposes of this section by the regulations; and

(b) that has a name that indicates that it contains fundraising appeal money; and

S. 27(2)(c) amended by No. 47/2019 s. 38.

(c) from which it is only possible to withdraw money by a cheque signed by at least 2 persons.

(3) If the money received in the course of a fundraising appeal is deposited under subsection (2) in an account that is not used exclusively for money received in the course of that appeal only, the person who is conducting the appeal must keep records in relation to the account that enable the money to be readily identified as having been received in the course of the appeal.

S. 27(4) amended by No. 70/2001 s. 12(a).

(4) The obligations on a person imposed by this section are subject to any contrary obligations imposed on the person by the Director under section 19C or 23.

Division 4—Accounts and records to be kept

28 Purpose and scope of this Division

The purpose of this Division is to ensure that adequate information is available to enable inspectors and members of the public to check that the proceeds of fundraising appeals have been used for the purpose for which they were solicited or received.

29 Fundraisers must keep certain records and accounts

(1) A person conducting a fundraising appeal must keep records sufficient to enable a true and fair view of the income and expenditure relating to the appeal to be ascertained at any given time including (without limiting this requirement)—

(a) full details of all funds and assets received as a result of the appeal;

(b) full details of what happened to all those funds and assets;

(c) full details of—

(i) the amount applied to the purposes or objects of the appeal and how it was distributed;

(ii) any expenditure on assets;

(iii) any expenditure on wages, salaries, commissions and other remuneration in relation to the appeal;

(iv) any other administrative expenses related to the appeal;

(v) any other expenditure related to the appeal;

(d) any other details required by the regulations.

(2) If the appeal is, or was, conducted as part of a national appeal, it is not necessary for the records to be kept in a way that enables the information required by subsection (1) that only relates to Victoria to be identified.

(3) The person conducting the appeal must ensure that the records are kept in a way that enables them to be conveniently and properly audited.

(4) The person conducting the appeal must ensure that accounts containing a summary of the records required by subsections (1) and (2) are finalised within 3 months of—

(a) the date the appeal ends, if the appeal runs for 12 months or less; or

(b) each anniversary of the start of the appeal, if the appeal runs for more than 12 months.

(5) If the appeal runs for more than 12 months—

(a) the accounts required by subsection (4)(b) are annual accounts; and

(b) once the appeal ends, the person conducting the appeal must ensure that accounts covering the period from the last anniversary of the appeal until the date the appeal ends are finalised within 3 months of the date the appeal ends.

S. 29(6) substituted by No. 70/2001 s. 13.

(6) For the purposes of this section, an appeal ends on the occurrence of the first of these events—

(a) if the appeal is being conducted by a person who is deregistered as a fundraiser under Division 7, on the day the deregistration takes effect;

(b) if the appeal is stopped by an order made by the Court under section 34, on the day the order takes effect;

(c) in any other case, one month after the last significant solicitation for money or a benefit is made in relation to the appeal.

(7) Records relating to any proceeds received after the date an appeal ends but before the accounts for the last period of the appeal are finalised must be included in those accounts.

(8) If the person who conducted an appeal continues to administer any funds or assets received as a result of an appeal after the appeal ends, the person must ensure that accounts containing a summary of the records required by subsections (1) and (2) are finalised within 3 months of—

(a) if the appeal ran—

(i) for 12 months or less, each anniversary of the date the appeal ended; or

(ii) for more than 12 months, each anniversary after the first anniversary of the date the appeal started; or

(b) 30 June in each year—

until the person ceases to administer the funds or assets.

(9) A person to whom subsection (8) applied must ensure that accounts containing a summary of the records required by subsections (1) and (2) are finalised within 3 months of the date the last of the funds or assets ceased to be administered by the person.

30 Other records that fundraisers must keep

(1) A person conducting a fundraising appeal must keep all of the following records—

(a) if a corporation, incorporated association or unincorporated organisation is authorised to participate in the appeal, the name of the person from that body who is responsible for overseeing the body's involvement in the appeal;

(b) the name and address of each person who participates in the appeal as a supervisor or manager;

(c) the name and address of each person who gained a financial advantage from the appeal (other than as a person for whose benefit the appeal was held or other than as a supplier of goods or services) and details of the reason for, and nature and amount of, that financial advantage;

(d) the—

(i) name and address of every person; or

S. 30(1)(d)(ii) amended by No. 47/2019 s. 39.

(ii) name or description of every class of person—

on whose behalf the appeal was made;

S. 30(1)(e) amended by No. 70/2001 s. 12(b).

(e) copies of the consents required by section 18A(1)(a) (if any);

(f) the dates on which the appeal started and finished;

(g) any other records required by the regulations.

(2) The details required by subsection (1)(c) must be given in respect of any commercial fundraiser involved in the appeal who gained a financial advantage from the appeal, even if the commercial fundraiser only supplied goods or services.

31 Where and for how long records are to be stored

(1) A person conducting a fundraising appeal must ensure that any records or accounts that the person is required to keep under this Part are stored at all times in Victoria at the address or the registered office or principal place of business of the person or of the designated person.

(2) The person must also ensure that the records or accounts are stored at that place for 3 years after the date the appeal ends.

Division 5—Audit of accounts and records

32 Director may require accounts to be audited

S. 32(1) amended by No. 70/2001 s. 24(1)(a).

(1) The Director may direct a person who is conducting, or has conducted, a fundraising appeal to submit to the Director, within the time specified by the Director, an auditor's report on the accounts and records kept in relation to the appeal.

(2) A person must comply with such a direction.

(3) The report must be prepared by—

S. 32(3)(a) substituted by No. 44/2001 s. 3(Sch. item 51).

(a) a registered company auditor within the meaning of the Corporations Act; or

S. 32(3)(b) amended by No. 70/2001 s. 24(1)(a).

(b) a person approved by the Director in writing for the purposes of this section.

(4) The report must contain the auditor's opinion on—

(a) whether the money received as a result of the appeal has been properly accounted for and applied; and

(b) whether the records and accounts in respect of the appeal have been properly kept in accordance with this Act; and

(c) whether the accounts show a true and fair view of the income and expenditure relating to the appeal.

S. 32(5) amended by No. 70/2001 s. 24(1)(a).

(5) The Director—

(a) may only issue a direction under subsection (1) within 3 years of the end of the appeal; and

(b) must allow the person who is given the direction a reasonable amount of time to comply with the direction; and

(c) is not liable for any costs in relation to the audit.

(6) If—

(a) the report of an auditor under this section states that a person may have committed an offence; and

(b) that person is prosecuted for the offence and a court finds the person guilty of, or convicts the person of, the offence—

the court may, on the application of the person who paid for the auditor's report, order the offender to pay to the applicant the cost of the report.

S. 32(7) amended by No. 2/2009 s. 21(1).

(7) Sections 86(2), (3), (4), (5), (6) and (7) and 87 of the Sentencing Act 1991 apply to subsection (6) as if a reference in those sections to an order made under section 86(1) of that Act was a reference to an order made under subsection (6).

(8) A receipt for the payment of the costs of an auditor's report that purports to be signed by, or on behalf, of the person responsible for the audit is evidence of the cost of the report.

Division 6—Public inspection of accounts and records

33 Public may inspect some records

(1) Any person may inspect the accounts required by sections 29(4) and (5) and the records required to be kept by section 30 (other than the records referred to in sections 30(1)(b) and (c)).

S. 33(2) amended by No. 70/2001 s. 24(1)(a).

(2) Any person may inspect any auditor's report prepared under section 32 at any time after a copy has been given to the Director.

(3) Subsection (2) applies even if the auditor's report contains information that a person is not entitled to inspect under subsection (1).

(4) A person who is conducting, or has conducted, a fundraising appeal must make any account or record that a person is entitled to inspect under this section available for inspection during normal business hours within 21 days of receiving—

(a) a written request for the inspection from the person; and

(b) the fee (if any) required by the regulations for the purposes of this section.

(5) The account or record must be made available for inspection at the principal place of business in Victoria of the person who is conducting, or who conducted, the appeal, unless the person who wishes to inspect the account or record agrees to a different venue for the inspection.

(6) It is sufficient compliance with a request for inspection if the person who is conducting, or has conducted, the fundraising appeal gives the person who made the request a copy of the information requested.

Pt 3 Div. 7 (Heading and ss 33A–33M) inserted by No. 70/2001 s. 14.

Division 7—Deregistration of fundraisers

S. 33A inserted by No. 70/2001 s. 14.

33A Director may deregister fundraiser

The Director may deregister a person as a fundraiser if—

(a) the Court orders that any fundraising appeal being conducted, or proposed to be conducted, by the person be stopped; or

(b) the Director is satisfied that the registration was obtained by fraud or on the basis of the supply of false, misleading or incomplete information; or

(c) the Director is satisfied, in relation to a fundraising appeal being conducted by the person—

(i) that the person (or any person assisting the person to conduct or administer the appeal) has failed, with respect to the appeal, to comply with any provision of this Act; or

(ii) that the appeal is not being, or will not be, conducted or administered in good faith for the purposes stated to those from whom money was, is being, or will be, sought; or

(iii) that—

(A) the person falls within one of the categories listed in section 19A(1); or

(B) an appeal manager for the appeal falls within one of the categories listed in section 19A(1) or 19B(2); or

(C) an associate of the person falls within one of the categories listed in section 19B(3)—

(unless the Director knew that the person, appeal manager or associate fell within that category at the time the person conducting the appeal gave the Director details of the person, appeal manager or associate); or

(iv) that the conduct of the appeal should be stopped in the public interest; or

(d) the Director is satisfied, in relation to a fundraising appeal that the person is conducting, or intends to conduct, on behalf of a class of beneficiary, that the description of the class is too vague, or that the class is insufficiently identified; or

(e) the Director is satisfied that it is not in the public interest for the person to conduct a fundraising appeal; or

(f) in the case of an incorporated association that was not incorporated in Victoria, that the association has not complied with section 64B(5).

S. 33B inserted by No. 70/2001 s. 14.

33B Process for expedited deregistration

(1) If the Director deregisters a person as a fundraiser under section 33A(a) or 33A(f), she or he must give the person a written notice—

(a) stating that the Director has decided to deregister the person as a fundraiser; and

(b) stating when the deregistration takes effect.

(2) If the Director deregisters a person as a fundraiser under section 33A(a), she or he must also include details of the Court order in the notice.

(3) The Director must not, under subsection (1)(b), specify that the deregistration is to take effect before the notice is given to the person.

S. 33C inserted by No. 70/2001 s. 14.

33C Process for other deregistration

(1) Before deregistering a person as a fundraiser under section 33A(b), 33A(c), 33A(d) or 33A(e), the Director—

(a) must give the person a written notice—

(i) stating that the Director is considering whether to deregister the person and the reasons why the Director is considering deregistering the person; and

(ii) inviting the person to make, within the time specified in the notice, a submission in relation to whether or not the Director should deregister the person; and

(b) must consider any submission made by the person within the specified time; and

(c) if the Director decides to deregister the person after considering the comments, must give the person a second written notice stating that the person is deregistered from the date specified in the notice.

(2) The Director must not specify a period of less than 7 days for the purposes of subsection (1)(a)(ii).

(3) The Director must not, under subsection (1)(c), specify a date that is less than 28 days after the date the notice under that subsection is given to the person.

(4) If the Director deregisters a person, she or he must ensure that the details of the deregistration required by the regulations are noted in the register.

S. 33D inserted by No. 70/2001 s. 14.

33D Action to be taken on deregistration

If the Director deregisters a person as a fundraiser, on the deregistration taking effect the person—

(a) must stop any fundraising activities that the person was undertaking immediately before the deregistration took effect and must not undertake any new fundraising activities; and

(b) must not, without the Director's written consent, pay out, or otherwise distribute or deal with, any asset obtained as a result of any fundraising appeal that the person conducted while registered as a fundraiser; and

(c) must give the Director an inventory of the assets of any fundraising appeal being conducted by the person within 3 working days after the withdrawal takes effect; and

(d) subject to paragraph (b), must ensure that any assets obtained as a result of the appeal are distributed as soon as is practicable to the intended beneficiaries of the appeal.

S. 33E inserted by No. 70/2001 s. 14.

33E Additional obligations of deregistered commercial fundraisers

(1) This section applies if the person who is deregistered as a fundraiser—

(a) is a commercial fundraiser; and

(b) was administering all or part of a fundraising appeal at the time the person was deregistered.

(2) On the deregistration taking effect, in addition to complying with section 33D the person must—

(a) immediately advise the person conducting the appeal of the deregistration; and

(b) subject to section 33D(b), as soon as is practicable transfer to that person all the assets of the appeal that are to be transferred on the ending of the appeal to that person under the agreement governing their relationship in respect of the appeal.

S. 33F inserted by No. 70/2001 s. 14.

33F Additional obligation on person using commercial fundraiser

(1) This section applies if, immediately before a person was deregistered as a fundraiser, a commercial fundraiser retained by that person was administering all or part of a fundraising appeal on behalf of that person.

(2) On the deregistration taking effect the person who was deregistered must also—

(a) advise the commercial fundraiser of the deregistration; and

(b) require the commercial fundraiser to transfer to the person all the assets of the appeal that are to be transferred on the ending of the appeal to the person under the agreement governing their relationship in respect of the appeal.

S. 33G inserted by No. 70/2001 s. 14.

33G Restriction on fundraisers if notice of deregistration given

(1) This section applies if a person is given a notice under section 33C(1)(c), but the notice is not yet in effect.

(2) Despite anything to the contrary in section 33J(4) or 33L, the person must not, without the Director's written consent, pay out, or otherwise distribute or deal with, any asset obtained as a result of any fundraising appeal that the person conducted while registered as a fundraiser.

(3) Subsection (2) ceases to apply if—

(a) the notice under section 33C(1)(c) takes effect; or

(b) the notice is withdrawn; or

(c) the Victorian Civil and Administrative Tribunal cancels or otherwise revokes the notice.

Once the notice under section 33(1)(c) takes effect, section 33D governs what the person must do.

(4) Nothing in this section affects section 33D.

S. 33H inserted by No. 70/2001 s. 14.

33H Action to be taken if registration expires

If a person's registration as a fundraiser expires and is not renewed, sections 33D, 33E and 33F apply as if a reference in those sections to the deregistration of a person as a fundraiser was a reference to the expiry of the registration.

S. 33I
inserted by No. 70/2001 s. 14.

33I Change of circumstance affects power to deregister

(a) the Director is entitled to deregister a person as a fundraiser on the basis of the status of, or any action taken by, a relevant associate, appeal manager, or assistant; and

(b) before a notice is issued under section 33C(1)(c)—

(i) the associate ceases to be an associate of the registered fundraiser; or

(ii) the appeal manager ceases to be an appeal manager for the appeal; or

(iii) the assistant ceases to be involved in the appeal, or in appeals conducted by the registered fundraiser.

(2) The Director may not deregister the person, solely on the ground that the former associate, appeal manager or assistant was involved in the appeal or appeals.

S. 33J
inserted by No. 70/2001 s. 14.

33J Person may apply for review of Director's decision

(1) A person may apply to the Victorian Civil and Administrative Tribunal for a review of a decision of the Director—

(a) to refuse to register the person as a fundraiser;

S. 33J(1)(b) amended by No. 2/2009 s. 16(1)(a).

(b) to impose conditions, or any particular condition, on the conduct of an appeal under section 12B, 19C or 23;

(c) to seek further information from the person;

S. 33J(1)(ca) inserted by No. 2/2009 s. 16(1)(b).

(ca) to reduce the duration of a person's registration as a fundraiser;

(d) to refuse to renew a person's registration as a fundraiser;

(e) to deregister a person as a fundraiser.

(2) An application for review must be made within 28 days after the later of—

(a) the day the person is given written notice of the decision that the person wishes to have reviewed;

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

(3) Any written notice that the Director gives a person of any decision referred to in subsection (1) must contain a copy of this section.

S. 33J(4) amended by No. 2/2009 s. 16(2).

(4) If a person applies for the review of any decision of the Director listed in subsection (1)(ca), (1)(d) or (1)(e) within the time specified in subsection (2), the decision of the Director is stayed until the application for review is affirmed, abandoned or dismissed.

S. 33K inserted by No. 70/2001 s. 14.

33K Certain actions not subject to review

Despite anything to the contrary in section 33J, a decision by the Director to deregister a person as a fundraiser under section 33A(a) or 33A(f) is not subject to review by the Victorian Civil and Administrative Tribunal.

S. 33L (Heading) amended by No. 2/2009 s. 17(1).

S. 33L inserted by No. 70/2001 s. 14.

33L Automatic extension of notice of deregistration or reduction of duration of registration

S. 33L(1)(a) amended by No. 2/2009 s. 17(2).

(a) a person is given a notice under section 20AA(3) or 33C(1)(c); and

(b) the person, under the Victorian Civil and Administrative Tribunal Act 1998, requests a statement of reasons for the decision to issue the notice within 28 days after notice of the decision is given to her or him.

(2) The date specified in the notice as the date the notice is to take effect is extended by virtue of this subsection until 28 days after the day on which—

(a) the statement of reasons is given to the person; or

(b) the person is informed under section 46(5) of that Act that a statement of reasons will not be given—

whichever occurs first.

S. 33M inserted by No. 70/2001 s. 14.

33M Automatic reversal if Court order quashed etc.

(a) the Director deregisters a person as a fundraiser under section 33A(a); and

(b) the Court order on which the Director's action was based is quashed, lapses or is withdrawn.

(2) On the quashing, lapsing or withdrawal of the order, by virtue of this section, the person who was the subject of the deregistration is deemed to be registered as a fundraiser for the remainder of the current registration period.

(3) A reference in this section to a current period is a reference to the period in which the deregistration took effect.

(4) If this section applies, the Director must ensure that the register is amended accordingly.

Pt 3 Div. 7A (Heading and ss 33N–33P) inserted by No. 47/2019 s. 40.

Division 7A—Deregistration of deemed registered fundraisers under this Act

S. 33N inserted by No. 47/2019 s. 40.

33N Director may deregister deemed registered fundraisers

(1) The Director, by written notice, may deregister a Commonwealth registered entity as a deemed registered fundraiser if the Director is satisfied that—

(a) the deemed registered fundraiser has contravened a provision of this Act; or

(b) the proceeds of an appeal conducted by the deemed registered fundraiser in Victoria have been mismanaged or misapplied; or

(c) the deemed registered fundraiser has paid an excessive commission or other remuneration to a collector or commercial fundraiser that administers part or all of an appeal in Victoria on behalf of the deemed registered fundraiser; or

(d) the deemed registered fundraiser has contravened a condition imposed on its registration by the Director; or

(e) any other circumstances exist that justify the deregistration.

(2) Before deregistering a Commonwealth registered entity as a deemed registered fundraiser under subsection (1), the Director—

(i) stating that the Director is considering whether to deregister the deemed registered fundraiser and the reasons why the Director is considering doing so; and

(ii) inviting the deemed registered fundraiser to make a submission on the proposed deregistration within a time specified in the notice; and

(b) must consider any submission made by the deemed registered fundraiser within the specified time.

(3) The Director must not specify a period of less than 7 days in a notice given under subsection (2)(a).

(4) If the Director decides to suspend a deemed registration of a Commonwealth registered entity after considering a submission under subsection (2)(a)(ii), the Director must give the Commonwealth registered entity a second written notice which states—

(a) that the deemed registered fundraiser is deregistered for the purposes of this Act and the reasons for the deregistration; and

(b) when the deregistration takes effect; and

(c) any conditions with which the Commonwealth registered entity must comply before the entity may give any further notice under section 23AB(1).

(5) A date specified under subsection (4)(b) must not be less than 28 days after the date on which the notice under subsection (4) is given to the Commonwealth registered entity.

S. 33O inserted by No. 47/2019 s. 40.

33O Action to be taken on deregistration

(1) If the Director deregisters a Commonwealth registered entity under section 33N, the entity must cease any fundraising activities that the entity was undertaking in Victoria immediately before the deregistration took effect.

(2) If the Director deregisters a Commonwealth registered entity under section 33N, the entity must not undertake any new fundraising activities in Victoria.

(3) If the Director deregisters a Commonwealth registered entity under section 33N, the entity must give the Director an inventory of the assets of any fundraising appeal being conducted in Victoria by the entity within 3 working days after the suspension takes effect.

(4) If the Director deregisters a Commonwealth registered entity under section 33N, the entity must not, without the Director's written consent, pay out or otherwise distribute or deal with any asset obtained as a result of any fundraising appeal conducted in Victoria during the period of its deemed registration.

S. 33P inserted by No. 47/2019 s. 40.

33P Restriction on further registration

(1) If the Director deregisters a Commonwealth registered entity under section 33N, the Director may prohibit the entity from giving any further notice under section 23AB(1)—

(a) for a period specified by the Director; or

(b) until the Director advises the entity in writing that the entity may give notice under section 23AB(1).

(2) For the purposes of subsection (1)(b), the Director must consider the Commonwealth registered entity's compliance with any conditions specified in section 33N(4)(c).

Part 4—Powers of the Court

Division 1—Jurisdiction of the Court under this Act

34 Court may order person to stop conducting an appeal

(1) The Court may order a person to stop conducting a fundraising appeal and any associated activities, or any activities relating to a proposed fundraising appeal, if it is satisfied—

(a) that the person (or any person assisting in conducting or administering the appeal or proposed appeal) has failed, with respect to the appeal or proposed appeal, to comply with any provision of this Act or any condition imposed by the Minister under this Act; or

(b) that the appeal or proposed appeal is not being, or will not be, conducted or administered in good faith for the purposes stated to those from whom money was, is being, or will be, sought; or

S. 34(1)(c) amended by No. 70/2001 s. 15(1).

(c) that the appeal or proposed appeal should be stopped in the public interest; or

S. 34(1)(d) inserted by No. 70/2001 s. 15(2).

(d) that the person (or any person assisting in conducting or administering the appeal or proposed appeal) uses fundraising practices or activities that may bring public fundraising into disrepute; or

S. 34(1)(e) inserted by No. 70/2001 s. 15(2).

(e) that any registration obtained under this Act in relation to the appeal was obtained by fraud or on the basis of the supply of false, misleading or incomplete information; or

S. 34(1)(f) inserted by No. 70/2001 s. 15(2).

(f) in respect of an appeal conducted by a registered fundraiser—

(i) that the registered fundraiser—

(A) is an insolvent under administration or is an externally-administered body corporate; or

(B) has been found guilty of a disqualifying offence since becoming registered as a fundraiser; or

S. 34(1)(f)(i)(C) amended by No. 13/2019 s. 221(Sch. 1 item 17).

(C) is a represented person within the meaning of the Guardianship and Administration Act 2019; or

(ii) that an appeal manager of the appeal—

(A) falls within one of the categories listed in paragraph (f)(i); or

(B) is not a fit and proper person to be associated with the appeal; or

(C) was an appeal manager for a fundraising appeal within the 10 years immediately before the application for the order was filed that was conducted by a person who was found guilty of a disqualifying offence within that period; or

(iii) that an associate of the registered fundraiser falls within one of the categories listed in section 19B(3)—

unless the Director knew that the registered fundraiser, appeal manager or associate fell within that category at the time the registered fundraiser gave the Director details of the registered fundraiser, appeal manager or associate.

(2) The Court may order a person to stop any particular activity associated with a fundraising appeal or a proposed fundraising appeal if it is satisfied—

S. 34(2)(a) amended by No. 70/2001 s. 15(3)(a).

(a) that the activity does not comply with a provision of this Act or a condition imposed by the Minister or the Director under this Act; or

S. 34(2)(aa) inserted by No. 70/2001 s. 15(3)(b).

(aa) that the activity may bring public fundraising into disrepute; or

(b) that the activity should be stopped in the public interest.

S. 34(3) amended by No. 70/2001 s. 15(4).

(3) The Court may make an order, or revoke an order, under this section on the application of the Minister or the Director.

S. 34(4) substituted by No. 70/2001 s. 15(5).

(4) In making an order, the Court—

(a) may specify that the order is to take effect immediately;

(b) must, in any other case, specify the date on which the order is to take effect;

(c) may provide that the order is to lapse before it takes effect if certain conditions set out in it are met;

(d) may impose restrictions on how the assets of the appeal are to be distributed or dealt with;

(e) may stay all or part of the order;

(f) may make any consequential order it thinks is necessary to give effect to the order.

(5) If the Court makes an order under this section in relation to a person who is exempt from all or part of Part 3, the Court may include in its Order a declaration that the exemption (or part of the exemption) is not to apply to the person for a specified period.

(6) If the Court exercises its powers under subsection (5), the exemption (or part of the exemption) specified in the Order does not apply to the person during the period specified under that subsection.

35 Court may make a temporary order without notice

(1) The Court may make a temporary order under section 34 without giving the person against whom the order is sought an opportunity to be heard if it is satisfied—

(a) that there are reasonable grounds for believing that the application under section 34 might be successful; and

(b) that having regard to all the relevant circumstances, the public interest will be best served by the making of the order.

(2) In making an order under this section the Court—

(a) must specify the date on which the order expires; and

(b) must not specify an expiry date that is more than 30 days after the date it makes the order.

(3) The Court may extend an order made under this section, but only if it has started to hear the application under section 34 to which the order relates.

(4) The Court may extend an order under subsection (3) until it gives its decision on the application.

S. 35A inserted by No. 70/2001 s. 16.

35A Court may make orders concerning distribution of appeal assets

(a) all the intended beneficiaries of a fundraising appeal refuse to accept the assets offered to them as a result of the appeal; or

(b) all the intended beneficiaries of a fundraising appeal no longer exist or cannot be found after all reasonable enquiries have been made; or

(c) a question or dispute arises as to how any or all of the assets received as a result of a fundraising appeal are to be distributed.

(2) The Director may apply to the Court for an order directing how the assets are to be distributed.

(3) The Court may make any order concerning the distribution of the assets that it thinks is appropriate having regard to the stated purpose of the appeal.

(4) The Court may make any consequential order it thinks is necessary to give effect to any order that it makes under subsection (3).

36 Court may make orders concerning wrongly obtained assets

(a) assets are obtained as a result of a fundraising appeal that was, or is being, conducted or administered in contravention of this Act; or

S. 36(1)(b) amended by No. 47/2019 s. 41.

(b) assets that were obtained as a result of a fundraising appeal were not, or are not being, applied for the purposes stated to the persons from whom the assets were obtained.

S. 36(2) amended by No. 70/2001 s. 24(1)(b).

(2) The Minister or the Director may apply to the Court for an order in relation to the retrieval and disposal of the assets.

(3) The Court may make any order concerning the retrieval and disposal of the assets that it thinks is appropriate having regard to the stated purpose of the appeal.

(4) However, the Court may only make an order in respect of an asset if it is satisfied—

(a) that subsection (1) applies; and

(b) that the asset can be traced back (whether directly or indirectly) to the assets that were obtained as a result of the appeal; and

(c) in the case of an asset that is an object, that the asset is not held by a person who obtained it in good faith and for value.

(5) The Court may make any consequential order it thinks is necessary to give effect to any order that it makes under subsection (3).

(6) Without intending to limit subsection (5), the Court—

(a) may order that a specified asset is not to be disposed of, or otherwise dealt with, by any person except in the manner and circumstances specified in the order; and

(b) if the Court considers that the circumstances so require, may direct a specified trustee to take control of the asset.

37 Minister or Director may refer question to Court for answer

S. 37(1) amended by No. 70/2001 s. 24(1)(b).

(1) At any time the Minister or the Director may refer to the Court any question as to whether—

(a) a particular person in relation to a fundraising appeal—

(i) is conducting (or administering or participating in) or has conducted (or administered or participated in) the appeal; or

(ii) is or was exempt from the Act, or a part of the Act; or

(iii) has provided accurate information in any application, notice or statement required by or under this Act; or

(iv) has in any other respect complied or failed to comply with the provisions of this Act;

(b) a fundraising appeal being, or to be, conducted is or is not in the public interest.

(2) Any finding of fact, or of mixed fact and law, that the Court makes in response to an application under this section is admissible as evidence of the relevant fact in any proceedings against a person for an offence against this Act.

(3) Subsection (2) does not apply to a finding that is quashed, or that is substituted by another finding, on appeal or review.

(4) If a finding of fact, or of mixed fact and law, is substituted by another finding on appeal or review, subsection (2) applies to the substituted finding as if it had been made by the Court.

38 Form of reference

(1) A reference under section 37 must be in writing and must be lodged with the registrar and must state the question or matters to be determined by the Court.

S. 38(2) amended by No. 70/2001 s. 24(1)(c).

(2) The registrar must send a copy of the reference to each party other than the Minister or the Director (as the case may be), and must notify each party of the time and place fixed by the registrar for the hearing of the reference.

Division 2—Procedure and conduct of matters under this Part

39 Powers of Court

S. 39(1) amended by No. 70/2001 s. 24(1)(b).

(1) Subject to this Part, the Magistrates' Court Act 1989 and the Rules made under that Act apply to all applications and references by the Minister or the Director to the Court under this Act.

(2) The Court in hearing an application, or dealing with a reference, under this Act may do anything that it may do in the exercise of its civil jurisdiction.

40 Evidentiary provisions

(1) Despite anything to the contrary in the Magistrates' Court Act 1989 and the Rules made under that Act, evidence before the Court on the hearing of an application or a reference may be given in writing, or partly in writing, and may be given by a statutory declaration.

(2) However, the Court must not receive evidence from any person who is not available for cross-examination, unless each party to the hearing consents to it doing so.

(3) Any consent given under subsection (2) forms part of the record of the Court.

41 Appearance of parties

Despite anything to the contrary in the Magistrates' Court Act 1989 and the Rules made under that Act, a party (including a corporation) to an application or a reference may appear by any other person authorised by that party.

42 Determination of Court

If the Court makes a determination, it must, unless all parties to the matter otherwise agree, give to each party to the matter within a reasonable time of making the determination a statement in writing of its reasons for the determination.

S. 43 amended by No. 70/2001 s. 24(1)(b).

43 Effect of determination

If a determination made by the Court requires any act or thing to be done by the Minister or the Director (other than the payment of costs), the Minister or the Director must do the act or thing within 5 working days of the day on which the Minister or the Director receives a copy of the determination.

Part 5—Enforcement provisions

Pt 5 Div. 1 (Heading) inserted by No. 103/2004 s. 45.

Division 1—General enforcement provisions

44 Minister or Director may demand information

S. 44(1) amended by No. 70/2001 s. 17(a)(b).

(1) The Minister or the Director may require a person to give her or him any information or documents that the Minister or the Director considers necessary to determine whether that or any other person—

(a) has complied with a provision of this Act;

(b) is, or has been at any time, required by law to comply with a provision of this Act;

(c) is or might be conducting or administering, or has or might have conducted or administered, a fundraising appeal;

(d) is, or was, exempt from the provisions of this Act.

S. 44(2) amended by No. 70/2001 s. 17(a).

(2) The Minister or the Director must make the requirement in a written notice that identifies the information or document and that specifies—

(a) by when the requirement must be complied with; and

S. 44(2)(b) amended by No. 70/2001 s. 17(b).

(b) in what form the information or document is to be given to the Minister or the Director.

S. 44(3) amended by No. 70/2001 s. 17(c).

(3) The notice must also state that the requirement is made under this section and must include a copy of this section and section 60.

S. 44(4) amended by No. 70/2001 s. 17(b).

(4) A person must comply with any requirement made by the Minister or the Director under this section, unless the person has a reasonable excuse for not doing so.

S. 45
repealed by No. 17/1999 s. 33(2).

46 Searches to monitor compliance with this Act

(1) In this section, relevant premises means any premises—

(a) on or from which it appears a fundraising appeal is being conducted or administered; or

(b) that an inspector believes, on reasonable grounds, contains any record or account that is required to be kept by this Act, or any document that indicates whether or not this Act has been complied with.

(2) An inspector may enter any relevant premises at any reasonable hour in the daytime and at any time that the premises is open for business and may—

(a) inspect the premises and any thing on the premises;

(b) search for any evidence of any contravention of this Act;

(c) make copies of, or take extracts from, any document kept on the premises;

(d) seize any thing on the premises if the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction;

(e) use any assistants the inspector considers necessary to exercise the powers conferred by this section.

(3) An inspector may exercise powers under this section only to the extent that it is reasonably necessary to do so for the purpose of determining compliance with this Act.

(4) An inspector may not continue to exercise any powers under this section if she or he fails to produce, on request, her or his identity card for inspection by the occupier of the land.

(5) An inspector may not, under this section, enter a residence unless the occupier of the residence has consented in writing to the entry and the carrying out of a search.

47 Offence-related searches and seizures

(1) An inspector may only exercise powers under this section if she or he has reasonable grounds for suspecting that there is on any premises a particular thing that may be evidence of the commission of an offence under this Act.

(2) The inspector, with any assistants she or he considers necessary, may with the consent in writing of the occupier of the premises, enter the premises and search for the thing without applying for a search warrant.

(3) If the thing is found during a search under subsection (2), the inspector may—

(a) inspect any thing on the premises;

(b) inspect, and make copies of, or take extracts from, the thing;

(c) seize the thing if the inspector believes on reasonable grounds that it is necessary to seize it in order to prevent its concealment, loss or destruction.

48 Occupier to be given copy of consent

(1) An occupier who consents in writing to the entry and search of her or his premises or residence under section 46 or 47 must be given a copy of the signed consent immediately.

(2) If, in any proceeding, a written consent is not produced to the court, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search.

49 Search warrant

(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence under this Act.

(2) If a magistrate is satisfied that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence under this Act, the magistrate may issue a search warrant authorising an inspector named in the warrant and any assistants the inspector considers necessary—

(a) to enter the premises, or the part of premises, named or described in the warrant; and

(b) to search for and seize any thing named or described in the warrant.

(3) In addition to any other requirement, a search warrant issued under this section must state—

(a) the offence suspected; and

(b) the premises to be searched; and

(c) a description of the thing for which the search is to be made; and

(d) any conditions to which the warrant is subject; and

(e) whether entry is authorised to be made at any time or during stated hours; and

(f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and must be in the form set out in the regulations under that Act.

(5) Subject to any provision to the contrary in this Act, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.

50 Announcement before entry

(1) Before executing a search warrant, the inspector named in the warrant or a person assisting the inspector must announce that she or he is authorised by the warrant to enter the premises and give any person at the premises an opportunity to allow entry to the premises.

(2) The inspector or a person assisting the inspector need not comply with subsection (1) if she or he believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

51 Copy of warrant to be given to occupier

If the occupier or another person who apparently represents the occupier is present at a premises when a search warrant is being executed, the inspector must—

(a) identify herself or himself to that person by producing her or his identity card for inspection by that person; and

(b) give to that person a copy of the execution copy of the warrant.

52 Receipt must be given for any thing seized

(1) An inspector may not seize a thing, apparently in the possession or custody of a person, unless she or he makes out and tenders to the person a receipt for the thing seized that—

(a) identifies the thing; and

(b) states the name of the inspector and the reason why the thing is being seized.

(2) If an inspector is unable to discover the identity of the owner or custodian of any thing seized, the inspector must leave the receipt with, or post it to, the owner of the premises from which the thing was seized.

53 Copies of certain seized things to be given

(1) If an inspector seizes—

(a) a document; or

(b) a thing that can be readily copied; or

(c) a storage device the information in which can be readily copied—

the inspector must give a copy of the thing or information to the owner or custodian of the document, thing or device as soon as practicable after the seizure.

(2) Subsection (1) does not apply—

(a) to any document, thing or device moved under section 54(2); or

(b) if the inspector is unable to discover the identity of the owner or custodian of any document, thing or device seized.

54 Use of equipment to examine or process things

(1) An inspector may bring on to a premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized.

(2) If—

(a) it is not practicable to examine or process the things at the premises; or

(b) the occupier of the premises consents in writing—

the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized.

(3) The inspector, or a person helping the inspector, may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized, if the inspector or person helping believes on reasonable grounds that—

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damage to the equipment or the thing.

55 Use or seizure of electronic equipment at premises

(1) If—

(a) a thing found at a premises is or includes a disk, tape or other device for the storage of information; and

(b) equipment at the premises may be used with the disk, tape or other storage device; and

(c) the inspector believes on reasonable grounds that the information stored on the disk, tape or other storage device is relevant to determine whether this Act has been contravened—

the inspector or a person assisting the inspector may operate, or may require the occupier or an employee of the occupier to operate, the equipment to access the information.

(2) If the inspector or a person assisting the inspector finds that a disk, tape or other storage device at the premises contains information of the kind referred to in subsection (1)(c), she or he may—

(a) put the information in documentary form and seize the documents so produced; or

(b) copy the information to another disk, tape or other storage device and remove that storage device from the premises; or

(c) if it is not practicable to put the information in documentary form nor to copy the information, seize the disk, tape or other storage device and the equipment that enables the information to be accessed.

(3) An inspector or a person assisting an inspector must not operate or seize equipment for the purpose mentioned in this section unless the inspector or person assisting believes on reasonable grounds that the operation or seizure of the equipment can be carried out without damage to the equipment.

56 Compensation for damage caused during inspections

(1) The Minister must pay compensation for any damage caused by an inspector, or a person assisting an inspector, in exercising (or purporting to exercise) any power conferred by this Act.

(2) However, the Minister is not liable to pay compensation for any damage caused during any inspection that reveals that there has been a contravention of this Act.

(3) In determining the amount of compensation payable in relation to any damage caused to electronic equipment, regard is to be had to whether the occupier of the premises and the employees and agents of the occupier, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

57 Return of seized things

(1) If an inspector seizes a thing under this Act, the inspector must take reasonable steps to return the thing to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the thing has not been returned before the end of the retention period, the inspector must take reasonable steps to return it unless—

(a) proceedings have commenced within the retention period and those proceedings (including any appeal) have not been completed; or

(b) a court makes an order under section 58 extending the retention period.

58 Court may extend period

(1) An inspector may apply to the Court within the retention period or within a period extended by the Court under this section for an extension of that period.

(2) The Court may order such an extension if satisfied that retention of the thing is necessary—

(a) for the purposes of an investigation into whether an offence has been committed; or

(b) to enable evidence of an offence to be obtained for the purposes of a prosecution.

(3) The Court may adjourn an application to enable notice of the application to be given to any person.

59 Power of inspector to require information or documents

(1) An inspector who—

(a) exercises a power of entry under this Act; and

(b) produces her or his identity card for inspection by a person—

may, to the extent that it is reasonably necessary to determine whether this Act has been contravened, require the person to give information to the inspector, to produce documents to the inspector and to give reasonable assistance to the inspector.

(2) A person must not refuse or fail, without reasonable excuse, to comply with a requirement made under subsection (1).

(3) A person must not, in response to a request under this Division—

(a) give information that the person knows to be false or misleading in a material detail; or

(b) produce a document that the person knows to be false or misleading in a material detail without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

1. 300 penalty units.

60 Protection against self-incrimination

(1) A person is not excused from giving information, producing a document or doing any other thing that the person is required to do by or under this Act on the ground that the information, the production of the document or the doing of the other thing would tend to incriminate the person.

(2) However, if a person claims, before giving any information, producing any document or doing any other thing, that the information, the production of the document or the doing of the other thing might tend to incriminate the person, the information, document or evidence of the doing of the thing is not admissible in evidence against the person in criminal proceedings, other than in proceedings in respect of the falsity of the information.

61 Inspectors etc. must not disclose information

(1) A person must not disclose any information that is obtained by her or him while exercising a power conferred by this Act.

(2) A person must not use any such information to obtain directly or indirectly any pecuniary advantage for herself or himself or for any other person.

(3) However, a person may disclose or use such information if—

(a) the disclosure or use is made in the performance of a duty under, or in connection with, this Act; or

(b) the person has the consent of the person to whom the information relates; or

(c) the disclosure or use is made in legal proceedings at the direction of a court; or

(d) the information is in the public domain at the time it is disclosed or used.

(4) Subsection (3) is not intended to interfere with any rights another person may have with regard to the disclosure or use of the information.

S. 61A inserted by No. 70/2001 s. 18.

61A Director may order distribution of assets

(a) the Court orders a person to stop conducting a fundraising appeal under section 34; or

(b) the Director deregisters as a fundraiser a person who is conducting a fundraising appeal; or

(c) the registration of a person as a fundraiser expires while the person is conducting a fundraising appeal.

(2) The Director may order the person to distribute, within the time specified by the Director, any assets received during the course of the appeal to the beneficiaries of the appeal.

(3) The order—

(a) must be made by written notice given to the person; and

(b) must set out the time within which the distribution must be made; and

(c) must contain a copy of this section.

(4) The person must comply with an order made under this section.

S. 61B inserted by No. 70/2001 s. 18.

61B Director may appoint an administrator

(1) This section applies if any of the circumstances listed in section 61A(1) exist in relation to a fundraising appeal.

(2) If, in the opinion of the Director it is appropriate to do so, the Director may appoint an administrator—

(a) to wind up the appeal; or

(b) to exercise the Director's functions in relation to consenting to the disbursement of the assets of the appeal.

(3) An administrator appointed under subsection (2)(a) may—

(a) take possession of all assets associated with the appeal; and

(b) prepare any accounts required by this Act in relation to the appeal; and

(c) distribute assets of the appeal to the beneficiaries of the appeal; and

(d) do anything else that is necessary to wind up the appeal.

(4) The costs of the administrator under this section are to be defrayed from the assets of the appeal.

Pt 5 Div. 2 (Heading and ss 61C–61K) inserted by No. 103/2004 s. 46.

Division 2—Infringement notices

S. 61C inserted by No. 103/2004 s. 46.

61C Definition

In this Division—

S. 61C def. of authorised officer amended by No. 37/2014 s. 10(Sch. item 70).

authorised officer means—

(a) an inspector;

(b) a police officer within the meaning of the Victoria Police Act 2013;

(c) a person authorised in writing by the Director.

S. 61D (Heading) amended by No. 47/2019 s. 42(1).

S. 61D inserted by No. 103/2004 s. 46.

61D Power to serve an infringement notice

S. 61D(1) amended by No. 32/2006 s. 94(Sch. item 21(1)), substituted by No. 47/2019 s. 42(2).

(1) An authorised officer may serve an infringement notice on a person who the authorised officer has reason to believe has committed an offence against—

(a) a provision of this Act specified in the Schedule; or

(b) a provision of this Act or the regulations prescribed as an infringement offence.

S. 61D(2) substituted by No. 32/2006 s. 94(Sch. item 21(2)), amended by No. 2/2009 s. 21(2).

(2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.

S. 61D(3) inserted by No. 32/2006 s. 94(Sch. item 21(2)).

(3) The infringement penalty for an alleged offence referred to in subsection (1) is the amount prescribed in respect of that offence.

S. 61E inserted by No. 103/2004 s. 46, substituted by No. 32/2006 s. 94(Sch. item 21(3)).

61E Form of notice

For the purposes of section 61D(1), an infringement notice must be in the form required by the Infringements Act 2006 and may contain any additional information approved by the Director.

Ss 61F–61K inserted by No. 103/2004 s. 46, repealed by No. 32/2006 s. 94(Sch. item 21(4)).

Part 6—Miscellaneous matters

62 False statements

A person must not make any false statement or give any false information in an application, notice or other document provided under this Act.

63 Role of designated person

In the case of a person who is an incorporated association or an unincorporated organisation, for the purposes of this Act—

(a) any requirement can be made of the association or organisation; and

(b) any notice or other document can be given to the association or organisation—

by making it of, or giving it to, the designated person of the association or organisation.

64 Change of designated person

(1) An incorporated association or an unincorporated organisation that has appointed a designated person may replace that person with another natural person.

S. 64(2) amended by No. 70/2001 s. 24(1)(a).

(2) The replacement of a designated person takes effect when the Director is given written notice of the name and address of the replacement.

(3) A person remains the designated person of an association or organisation until—

S. 64(3)(a) amended by No. 70/2001 s. 24(1)(a).

(a) the Director is given a notice under subsection (2); or

S. 64(3)(b) amended by No. 70/2001 s. 24(1)(a).

(b) the person gives the Director a written notice of resignation signed by the person.

S. 64A inserted by No. 70/2001 s. 19.

64A Appointment and role of responsible person

(1) This section only applies to an incorporated association that was not incorporated in Victoria.

(2) A person may only be appointed as the responsible person of an incorporated association if she or he is a natural person and is a member of the governing body of the association.

(3) The appointment of a person as a responsible person only takes effect on the person signing a written consent to the appointment that also states the obligations imposed on a responsible person by this Act and the maximum penalty that applies if those obligations are not met.

(4) A person who is notified as the responsible person under section 18(2)(k) on behalf of an incorporated association must ensure that the association complies with all the obligations placed on the association by this Act.

1. 120 penalty units.

(5) It is a defence to a charge under subsection (4) if the person charged proves that she or he took all reasonable steps to ensure that the association complied with all the obligations placed on it by this Act.

S. 64B inserted by No. 70/2001 s. 19.

64B Change of responsible person

(1) An incorporated association that has appointed a responsible person may replace that person with another person.

(2) The replacement of a responsible person takes effect when the Director receives—

(a) written notice of the name and address of the replacement; and

(b) the consent required by section 64A(3) signed by the replacement.

(3) A person remains the responsible person of an association until—

(a) the person is replaced in accordance with subsection (2); or

(b) the person gives the Director a written notice of resignation signed by the person.

(4) A person does not cease to be the responsible person of an association merely by ceasing to be a member of the governing body of the association.

(5) If a person appointed as the responsible person of an association resigns, the association must replace that person not more than 7 days after the resignation takes effect.

65 Presumption concerning the service of documents by post

(1) If a document under this Act is sent by prepaid post to an address, the document is to be presumed for the purposes of this Act to have been received at that address at the time at which the document would have been delivered in the ordinary course of post.

(2) Subsection (1) does not apply if the relevant court or tribunal is satisfied that the document was not received at the address at that time on the basis of evidence presented by, or on behalf of, a person seeking to displace the presumption.

66 Continuing offences

S. 66(1) amended by No. 70/2001 s. 24(1)(b).

(1) The Minister or the Director or an inspector may give a person a notice—

(a) stating that in her or his opinion the person is engaging in conduct that constitutes an offence under this Act; and

(b) requesting the person to take specified action to stop the offence from continuing; and

(c) specifying a date by when the specified action must be taken.

(2) The notice must—

(a) specify the provisions in respect of which it is issued; and

(b) contain a brief description of the grounds on which it is based; and

(c) contain a copy of this section.

(3) If the person fails to comply with a notice given under this section, the person is guilty of an offence for each day the offence in respect of which the notice was given continues after the date specified under subsection (1)(c).

1. One tenth of the penalty that applies in respect of the offence for each day the offence continues after the date specified under subsection (1)(c).

(4) Subsection (3) does not apply if the offence in respect of which the notice was given is not found proven.

67 Extended time for prosecutions

Despite anything to the contrary in any Act, a proceeding for an offence against this Act may be commenced within 3 years after the date on which the offence is alleged to have been committed.

S. 68 substituted by No. 103/2004 s. 47, amended by Nos 17/2007 s. 36(Sch. item 5), 2/2008 s. 60(Sch. item 5), 72/2010 s. 48(Sch. item 10), substituted by No. 21/2012 s. 239(Sch. 6 item 17.3).

68 Application of Australian Consumer Law and Fair Trading Act 2012

(1) Sections 125, 195 and 196 and Part 8.2 of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

(2) For the purposes of subsection (1)—

S. 68(2)(a) substituted by No. 50/2014 s. 27.

(a) section 209 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to any section of that Act were a reference to section 125 of that Act (as applied by subsection (1));

(b) section 210 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to Part 3.1 or Part 6.3 of the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act;

(c) section 212 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference to prescribed proceedings were a reference to—

(i) proceedings for an offence against a provision of this Act (except Part 5); or

(ii) proceedings on an application for an injunction under section 201, 202, 203, 205 or 206 of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (1)) against a person alleged to have contravened a provision of this Act (except Part 5); or

(iii) proceedings on an application for an order under section 216, or for damages under section 217, of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (1)).

S. 68(3) inserted by No. 12/2015 s. 21(Sch. 1 item 5).

(3) In this section—

this Act includes the regulations.

S. 69 (Heading) inserted by No. 70/2001 s. 24(1)(d).

S. 69 amended by No. 70/2001 s. 24(2) (ILA s. 39B(1)).

69 Delegation by Minister and Director

(1) The Minister may, in writing, delegate to any officer or employee of the public service any of the powers conferred on her or him by this Act, other than this power of delegation.

S. 69(2) inserted by No. 70/2001 s. 24(2).

(2) The Director may, in writing, delegate to any officer or employee of the public service any of the powers conferred on her or him by this Act, other than this power of delegation.

S. 70 amended by Nos 70/2001 s. 24(1)(e), 47/2019 s. 43.

70 Judicial notice concerning authorisations

All courts and persons authorised by law or the consent of parties to receive evidence must take judicial notice of the signature of the Minister, the Director and any delegate of the Minister or the Director on any document.

S. 70A inserted by No. 70/2001 s. 20.

70A Register

(1) The Director must maintain a register for the purposes of this Act.

(2) The Director must ensure that the register contains any details concerning fundraising appeals required by this Act.

(3) The register may contain—

(a) the name and contact details of registered fundraisers, any person designated as a contact person by a fundraiser and any designated person; and

(b) details of fundraising appeals that are being, or that are intended to be conducted, by registered fundraisers;

(c) details of the beneficiaries on whose behalf fundraising appeals are being, or are intended to be, conducted;

S. 70A(3)(ca) inserted by No. 2/2009 s. 18(a).

(ca) details of the total amount of proceeds raised in fundraising appeals conducted by registered fundraisers that has been or is estimated will be distributed to the beneficiaries of the appeals;

S. 70A(3)(d) amended by No. 2/2009 s. 18(b).

(d) in relation to a particular person or organisation, details of the percentage of the proceeds raised in fundraising appeals by the person or organisation that have been or will be passed on to the beneficiaries of the appeals (regardless of whether this information relates to current appeals or not); and

(e) any other information permitted by the regulations.

(4) A person may inspect the register at any time that the office in which the register is kept is open for business.

(5) The Director may publish the register, or any details in the register, in any manner or form that the Director considers to be appropriate.

(6) The Director may amend the register at any time to correct any mistakes in the register.

S. 70B inserted by No. 70/2001 s. 20.

70B Public information statements

(1) If satisfied that it is in the public interest to do so, the Minister or the Director may make a public statement or issue a public warning about any of the following—

(a) fundraising practices or activities, or any person or class of person engaging in those practices or activities;

(b) income and expenditure details relating to a particular fundraising appeal;

(c) the percentage of the proceeds raised in a particular fundraising appeal that have been distributed to the intended beneficiaries of the appeal;

(d) any other matter that adversely affects, or that may adversely affect, the interests of the public concerning the collection or distribution of fundraising proceeds.

(2) The statement or warning may identify a particular person.

71 Regulations

(1) The Governor in Council may make regulations—

(a) prescribing the form of any notice, application, permit, request, order, direction or other form or instrument to be made or given under this Act;

S. 71(1)(b) amended by No. 47/2019 s. 44(1).

(b) exempting a person or a class of person from having to comply with any or all of the requirements of this Act and imposing conditions in relation to such exemptions;

S. 71(1)(c) repealed by No. 2/2009 s. 19, new s. 71(1)(c) inserted by No. 47/2019 s. 44(2).

(c) prescribing infringement offences against a provision of this Act or the regulations for the purposes of section 61D;

(d) requiring a person conducting a fundraising appeal to which Part 3 applies to ensure that any record or account required by Part 3 complies with specified requirements or standards;

S. 71(1)(da) inserted by No. 70/2001 s. 21.

(da) prescribing matters that must, or that may, be included in the register;

S. 71(1)(db) inserted by No. 47/2019 s. 44(3).

(db) prescribing matters in relation to the registration of Commonwealth registered entities under this Act;

(e) prescribing all matters that by this Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance; and

S. 71(2)(c) substituted by No. 47/2019 s. 44(4).

(c) may prescribe infringement penalties, including different penalties for different classes of persons; and

S. 71(2)(d) amended by No. 47/2019 s. 44(5).

(d) may confer a discretionary authority or impose a duty on a person or a class of person;

(e) may apply, adopt or incorporate any matter contained in any document whether—

(i) wholly or partially or as amended by the regulations; or

(ii) as in force at a particular time or as in force from time to time.

S. 71(3) repealed by No. 1/2010 s. 96.

Pt 7
(Heading) inserted by No. 70/2001 s. 22.

Part 7—Transitional provisions

72 Transitional provision

(1) Any consent, direction, permit, notice, request, requirement or document given under the Fundraising Appeals Act 1984 that—

(a) was in force immediately before this section came into operation; and

(b) that has an equivalent under this Act—

is deemed to have been given under this Act.

(2) Any fundraising appeal that was being conducted in accordance with all applicable laws immediately before the date this section came into operation may continue to be conducted for 12 months after that date as if the Fundraising Appeals Act 1984 had not been repealed and as if this Act was not in force.

S. 72A inserted by No. 17/1999 s. 34, repealed by No. 1/2010 s. 96.

S. 73 repealed by No. 1/2010 s. 96.

S. 74
inserted by No. 70/2001 s. 23.

74 Registration as fundraiser not required in certain cases

(1) This section applies to a person who was conducting a fundraising appeal with the consent or deemed consent of the Minister, or under a permit issued by the Minister, immediately before section 23 of the Fundraising Appeals (Amendment) Act 2001 came into operation.

(2) Despite anything to the contrary in Part 3, the person may continue to conduct the appeal until the expiry of the consent or permit even though the person is not registered as a fundraiser.

(3) The register may contain—

(a) the name and contact details of any person to whom this section applies; and

(b) details of the appeal that the person is conducting that are equivalent to the details that the register may contain in relation to appeals conducted by registered fundraisers.

S. 75
inserted by No. 70/2001 s. 23.

75 Temporary continuation of exemptions

A person or organisation that was exempted from all or any of Part 3 by regulations in force under section 16(2) immediately before the date section 23 of the Fundraising Appeals (Amendment) Act 2001 came into operation continues to be exempted from all or any of that Part (as the case may be) for 12 months after that date, unless an Order made under section 16A otherwise provides.

S. 76
inserted by No. 2/2009 s. 20.

76 Change of title provision

On the commencement of section 4 of the Fundraising Appeals and Consumer Acts Amendment Act 2009, in any Act (other than this Act) or in any instrument made under any Act or in any other document of any kind, any reference to the Fundraising Appeals Act 1998 is deemed to be a reference to the Fundraising Act 1998 so far as it applies to any period on or after that commencement, unless the contrary intention appears.

S. 77
inserted by No. 2/2009 s. 20.