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Regulatory guidance for fundraisers on the way

20 April 2017

FIA's response to the Australian Consumer Law Review Final Report

Commonwealth and state government officials have decided there is an 'immediate need' for regulatory guidance on the extent to which the Australian Consumer Law (ACL) covers fundraising.

Accordingly they propose to develop regulatory guidance covering the activities of the sector and how regulators will approach compliance and enforcement 'as a priority project for 2017'.

This is the main outcome for fundraisers in the final report of the ACL Review which was released this week.

FIA is pleased that the commonwealth and state officials who produced this report are giving this issue such priority. They are the same officials who are responsible for state fundraising regulation and hopefully they will bring the same sense of urgency to red tape reduction in their individual jurisdictions.

The uncertainty around how much the general national consumer law, which covers all business, also applies to fundraising and charities has hampered regulatory reform for decades.

This latest report highlights the problem as "due to a lack of specific guidance and limited case law in the fundraising context particularly in relation to 'pure' donations without any supply of goods or services."

The report went on to nail the concerns FIA has identified in its submissions to the ACL Review, particularly as they may have tax implications. "The sector can face difficulties in translating the provisions from the 'consumer and supplier' context to the 'donor and fundraiser' context."

"FIA has emphatically argued that donors and consumers are not the same. Donors make a gift and expect nothing in return; with consumers there is value exchange between buyer and seller and therein lies the problem in trying to treat them the same legally. We are pleased that argument has hit home with the Review," said Rob Edwards, CEO, FIA.

We look forward to working with the officials to produce this guidance later this year. As this week's Report does not recommend any change to the actual legislation at this stage, the work of clarifying the current application to the activities of fundraisers, charities and NFPs can proceed immediately.

In addition the Report recommended a further process of review to "assess the effectiveness of the proposed guidance on not-for-profit fundraising, further regulatory action and whether any amendment to the ACL is necessary."

Many members have contributed to the ACL Review process both directly and indirectly. Our combined efforts have acted to inject a sense of urgency into the case for fundraising red tape reduction which is a very welcome development.

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