Consumer Affairs Australia and New Zealand (CAANZ) is consulting on guidance about the application of the Australian Consumer Law (ACL) to the activities of charities, not-for-profit entities and fundraisers.

The need for new guidance was recognised by the 2017 Review of the ACL, where it was acknowledged that some charities, not-for-profits and fundraisers face difficulties in determining whether their conduct is ‘in trade and commerce’ and thus captured by the ACL. The Final Report of the ACL Review recommended that guidance be published by CAANZ to assist the sector understand their obligations under the ACL. 

The recommendation to develop guidance was a disappointment to the “Fix Fundraising” coalition, led by Justice Connect’s NFP Law, who sought amendments to the ACL to more concretely clarify its application to fundraising. The coalition considered that such an amendment would be a precursor to the repeal of fragmented state and territory fundraising laws. This concern was noted in the Final Report of the ACL Review, but was not specifically acted upon, perhaps because of a view that reliance on general ACL regulators alone would be insufficient to regulate fundraising effectively.

Following consideration of the Final Report of the ACL, the Consumer Affairs Forum (Ministers responsible for consumer affairs nationally) agreed to bring forward a research project that would consider ‘whether any further reforms are needed to the ACL to enable the charitable and fundraising sector to work more effectively to benefit for the Australian community. Such a project is now scheduled to begin in 2019-2020.

 The draft guidance includes the following key points: Generally, if you:

engage in fundraising activity involving a supply of goods or services;

are a for-profit professional fundraiser; or

are fundraising in an organised, continuous and repetitive way,

then your fundraising activity is likely to be in trade or commerce and you are likely to have certain obligations under the ACL.

The full draft guidance, together with a consultation survey, is available online here: https://consultation.accc.gov.au/compliance-enforcement/application-of-acl-to-fundraising/.

The consultation closes on 26 October 2017.

 

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