Conducting an appeal

What is a fundraising appeal

A charitable fundraising appeal is where a person solicits or receives money, property or other benefits from the public, representing that the appeal is for:

• a charitable purpose, or
• the support of an organisation which has a charitable purpose.

A fundraising activity is an activity intended to raise money where there is a representation that the proceeds will benefit the public or a section of the public, rather than be for private benefit.

Fundraisers can use a mixture of online, event-based and traditional methods to raise funds or receive property or other benefits from the public.

Common fundraising methods include:

• online appeals (for example digital, email or social media appeals)
• crowdfunding appeals
• conducting raffles and other community gaming activities
• sales of goods and services (for example bake sales)
• face-to-face appeals (street, doorknocking, shopping centres, train stations)
• charitable events
• direct mail
• telemarketing appeals
• clothing bin donations
• television appeals (including Telethons).

What is not considered a fundraising appeal

The following are not considered fundraising appeals and no authority is required:

• payment of a genuine membership renewal fee of an organisation
• an appeal to (or the receipt of money or benefit from) members of an organisation
• any property bequeathed, or directions or instructions about how property may be bequeathed
• collecting done in a workplace or organisational setting to raise money for a colleague or their immediate family
• an appeal to (or the receipt of money or benefit from) any Commonwealth, State or local government authority (for example government grants)
• a payment of a genuine fee or charge for:
  • educational facilities or services
  • child-minding services
  • goods and services supplied by a supported employment service for people with disabilities
  • nursing or medical services
  • other care or welfare services
• an appeal to (or the receipt of money or benefit from) a registered club if the support is provided under the ClubGRANTS scheme.

Certain projects and activities may not be intended as a fundraising appeal. For example, activities done for cost recovery such as publishing an information handbook, selling equipment at cost or at a nominal mark-up, or a stage play by a drama group.

Be aware that such activities may constitute an appeal if they fall within the definition of fundraising appeal in the Act.

Who conducts charitable fundraising appeals

Sometimes an authority or deemed authority holder will authorise someone else called a 'trader' (commonly known as a commercial fundraiser) to organise or be part of the fundraising appeal on their behalf.

Who can participate in charitable fundraising appeals

A person participates in a fundraising appeal if they:

• solicit or receive any money, property or other benefit during the appeal, or
• assist in organising the appeal. 

Participants (also known as collectors) can be:

• volunteers
• employees
• contractors (or third-party fundraisers). 

A participant may only take part in a fundraising appeal if an authority (or deemed authority) holder has provided written authority to the participant to fundraise on their behalf. 

These requirements do not apply to fundraisers exempted from the obligation to hold an authority to fundraise.

Rules for children participating in appeals

A child who participates in a NSW fundraising appeal must:

• be at least 8 years old
• be at least 13 years old to receive a benefit, such as wages, commissions or other material benefits
• have parental consent to participate in the appeal and be able to contact their parents during an appeal
• be adequately supervised (having regard to age, sex and maturity of the child), which includes:
  • having at least one supervisor per 6 child participants
  • where the child is 11 years or older, supervisors must be near the child participant, know the whereabouts of the child and make contact every 30 minutes
  • where the child is under 11 years old, their supervisor must be in constant contact
• work with at least one other child participant
• not enter a private dwelling when engaged in door-to-door fundraising.

The authority (or deemed authority) holder is responsible for ensuring compliance with requirements regarding child participants. The authority holder must take all reasonable steps to ensure any child participant also complies with these requirements.

Well-being

Authority (or deemed authority) holders must ensure that the physical and emotional well-being of a child participant is not put at risk. This means they must:

• take all reasonable steps to ensure children always have access to drinking water and receive appropriate and sufficient nutritious food which is available at reasonable hours
• ensure toilet, hand-washing and hand-drying facilities are accessible
• ensure a child is accompanied by their parent or by an adult authorised by their parent when travelling home after they participate in the appeal. This requirement does not apply where:
  • the child is over 12
  • the distance home is less than 10 kilometres
  • public transport is available
  • the journey is being completed within daylight hours
• ensure children are adequately clothed and protected from extremes of climate or temperature (for example providing sun protection)
• ensure children do not lift or move anything of an unreasonable weight, considering their age and condition
• not punish, socially isolate, immobilise or subject children to any behaviour likely to humiliate or frighten them.

Insurance

Appropriate insurance, including public liability insurance, must be secured for a child participant. This includes adequate insurance to protect the interests of the child against any claim which could be brought against them (for example for property damage).

Hours of participation

A child must not be required or permitted to participate in a fundraising appeal:

• for more than 4 hours on a school day
• for more than 6 hours on days other than school days
• for more than 5 days per week
• before sunrise or after sunset where the appeal is conducted outdoors
• after 8.30pm if the following day is a school day.

After participating for any maximum period provided above, a child must receive a minimum break of 12 hours before participating further.

Children receiving wage, commission or benefit

A letter of employment must be issued to any child participant who receives a wage, commission or some other material benefit for participating in a fundraising appeal.

The letter must contain:

• details of how wages, commissions or benefits will be calculated
• any guarantee of minimum payment or benefit
• method of payment
• terms and conditions of employment
• rights of the employee.

The authority (or deemed authority) holder must maintain a record of employment for each child participant employed. For every child, the record must include:

• child's full name, residential address and contact number
• child's date of birth
• date of employment
• description of the nature of employment
• details of the parent's consent to their child's employment (including an original copy of any written consent)
• name and address of the person immediately responsible for the child during the appeal.

If the employer is a trader, the employer must make the records available to the authority (or deemed authority) holder.

Legal requirements apply for conducting an appeal

Regardless of the fundraising method, all fundraising authority (or deemed authority) holders must comply with the following when conducting an appeal in NSW:

• National Fundraising Principles (Principles)
• NSW Standard Conditions which operate to supplement the Principles.

The Principles and the fundraising Standard Conditions are legally enforceable requirements attached to all fundraising authorities (or deemed authorities).

Fundraising authority holders and deemed authority holders must also comply with other obligations under the NSW charitable fundraising laws. Refer to other sections of these Guidelines for more information.

National Fundraising Principles  

The National Fundraising Principles (the Principles) are a set of 16 nationally agreed rules on charitable fundraising conduct. They are set out in NSW’s Charitable Fundraising Regulation.

All authority holders (including deemed authority holders) operating in NSW must follow the Principles while undertaking fundraising appeals in NSW.

Read the 16 National Fundraising Principles.

Standard Conditions

The Standard Conditions in the Regulation list the following additional key requirements that all NSW fundraising authority holders must comply with:  

1. controls over conduct of fundraising appeals
2. organisations must submit audited annual financial statements to AGM (deemed authority holders are exempt)
3. expenses to be proportionate to gross income
4. payments in connection with fundraising appeals must be authorised
5. advertisements, notices or information about fundraising appeals
6. donations collected using collection bins
7. management of organisations (deemed authority holders are exempt)
8. processes for avoiding conflicts of interest
9. internal dispute resolution processes (deemed authority holders are exempt)
10. child participants in fundraising appeals.

These guidelines include more information about each condition.

Rules for specific types of appeals

Some types of fundraising activities are also subject to specific rules. The rules are designed to ensure that the appeal is conducted fairly, transparently and in compliance with the charitable fundraising laws and other relevant laws.

Face-to-face appeals

Face-to-face collections may be conducted:

• door-to-door
• in a street or public place (for example a train station)
• in a privately-owned public space (for example a shopping centre or university campus)
• in a place of entertainment.

Principle 2 of the National Fundraising Principles provides that authority (or deemed authority) holders must ensure all their representatives (including face-to-face collectors) are identifiable to the public.

Face-to-face participants who do not prominently display any identification card or badge can be issued a fine.

If a collection is to be undertaken in any public road or place, an authority (or deemed authority) holder should contact the local council(s) to determine whether approval is required. This especially applies if a stall, stand or similar device is to be used for the fundraising appeal.

If a collection is to be undertaken in a privately-owned public space, then the authority (or deemed authority) holder must first obtain written approval from the owner of the private space as well as comply with any policies or reasonable directions.

Owners, councils or relevant authorities may charge fees and charges for using premises or areas. Authority (or deemed authority) holders must ensure costs are reasonable and do not exceed the proceeds of the fundraising appeal.

Authority (or deemed authority) holders must also comply with all reasonable directions of owners, councils or relevant authorities where face-to-face fundraising appeals are held.

Telemarketing appeals

Phone calls for the purposes of soliciting donations are known as telemarketing.

Principle 5 of the National Fundraising Principles provides that authority (or deemed authority) holders must ensure that their representatives never conduct telephone fundraising activities during restricted times. 

Authority (or deemed authority) holders and participants in telemarketing appeals should also refer to Participants must make key disclosures for more information. 

Complying with the Do Not Call Register

Persons conducting or participating in fundraising appeals using telemarketing must also comply with the Commonwealth Do Not Call Register Act 2006 which established the Do Not Call Register.

The Do Not Call Register is a database where individuals and organisations can remove their telephone, mobile and fax numbers to opt out of receiving most unsolicited telemarketing.

This means:

• fundraisers are not permitted to call numbers on the Do Not Call register if they are not registered with the ACNC
• fundraisers can legally call numbers on the Do Not Call register if they are registered with the ACNC. However, once a person requests the charity to stop calling, then the charity must comply immediately (see Principle 4 of the National Fundraising Principles).

Civil penalties and injunctions apply to persons in breach of the Do Not Call Act. Non-compliance with the Principles can result in Fair Trading cancelling or suspending an authority or deemed authority.

Online appeals

Online appeals refer to fundraising appeals through a charity's website or via email. If an online fundraising appeal receives donations from persons in NSW, the charity must hold an authority (or deemed authority) to fundraise under the Act (unless exempt) and comply with the charitable fundraising laws.

Many charities offer direct links for one-off payments or longer-term donation plans. For example, many charities have a 'donate now' button on their website’s homepage.

Principle 9 of the National Fundraising Principles provides that authority (or deemed authority) holders must ensure that their representatives are transparent about recurring financial commitments from donors.

Authority (or deemed authority) holders and participants involved in online appeals should also refer to Participants must make key disclosures.

Crowdfunding appeals

Crowdfunding is another method of raising funds for individuals, businesses, not-for-profits and charities.

It involves an individual or an organisation setting a fundraising target online and then asking for donations to reach that target. There are numerous crowdfunding bodies that provide a platform for this form of fundraising.

If a person raising funds for a charitable purpose accepts money from someone living in NSW, it must abide by all relevant laws, regulations and authority conditions (even if the charity is based or registered outside of NSW). This includes where money is accepted via an online platform.

If a crowdfunding platform obtains a benefit for hosting the fundraising appeal or conducts fundraising appeals for business or trade, they are a trader for the purposes of section 11 of the Act. 

Before crowdfunding for a charitable purpose, where funds may be donated by persons in NSW, persons conducting the appeal need to:

• obtain an authority (or gain a deemed authority) to undertake a fundraising appeal unless exempt
• carefully read the terms and conditions of the crowdfunding platform to ensure they are fair and reasonable, including details of what will happen to money raised if the fundraising target is not met,
• ensure the distribution of funds between the crowdfunding body and authority holder is reasonable. The amount or calculation of the amount to be returned to the authorised fundraiser from proceeds of the appeal must be included in a written agreement
• ensure any advertisement or notice of information of the appeal are accurate and outline how funds are distributed between the authority holder and crowdfunding body as well as explain how funds will be used if the target is met.

If a person is considering crowdfunding to raise money on behalf of a charity, the person should contact the charity to obtain authorisation to conduct the appeal.

Sales of goods and services

In the context of a charitable fundraising appeal, the sale of goods and services may include selling:

• items through door-to-door sales (such as confectionary)
• merchandise in retail outlets where a portion of the profits are donated to charities
• tickets for charity concerts
• publications for charity (for example where a percentage of books sales goes to a charity).

An authority (or deemed authority) holder must take all reasonable steps to ensure that the expenses of the appeal do not exceed a fair and reasonable proportion of the gross income obtained from the supply of goods or services.

Where goods or merchandise are sold, a stock inventory record must be maintained in addition to any other records.

All NSW fundraisers must ensure they also comply with the Fair Trading Act 1987 and the Australian Consumer Law wherever the supply of goods or services is involved.

Community gaming appeals

A community gaming activity can be conducted as part of a fundraising appeal provided the game is conducted in compliance with the requirements under the Community Gaming Act 2018 and associated Regulation.

Community gaming activities include a range of lotteries (including Art Unions), raffles and games of chance that are operated by, or on behalf of, charities and not-for-profit organisations where proceeds support a charitable purpose. This excludes commercial lotteries conducted by Lotteries NSW.

For further information visit the community gaming page.

Appeals for donated goods

Where a fundraising appeal for collection of donated articles of clothing is to be conducted by the authority (or deemed authority) holder, the holder must ensure:

• if the collection device is a bin, each bin must have ‘CHARITY OPERATED’ displayed on its chute
• any advertisement, notice or information must also include particulars of what is to happen to any goods or material collected.

If you are conducting an appeal jointly with a trader, find out what requirements apply to the collection of goods with a trader.

Rules for advertisements, information and notices about an appeal

Advertisements, notices or information involves any representations made to the public as part of a fundraising appeal. This includes posters (including for charity concerts), advertisements, flyers and direct marketing.

When making representations to the public, fundraisers must comply with Principle 1 of the National Fundraising Principles.

Any advertisement, notice or information provided as part of a fundraising appeal must:

• clearly and prominently outline the name of the authority (or deemed authority) holder
• disclose the charitable purpose of the fundraising appeal
• not be reasonably likely to cause offence
• be based on fact
• not be false, misleading or deceptive or likely to mislead or deceive
• include details of how donated goods or material will be dealt with (for collections of donated goods or material).

For example, where a trader has employed a participant, it would be false and misleading for a participant to state ‘I am (name) from the (name) charity’, whereas in fact they are from a commercial organisation, not the charity itself. It would also be false and misleading for a participant to answer a question that he or she is not remunerated for the purposes of the appeal, when in fact that person is remunerated by a trader.

The advertisement, notice or information may also need to comply with other laws, such as the Australian Consumer Law.

For advertisements involving traders see Appeals conducted jointly with traders.

Participants must make key disclosures

Participants in a fundraising appeal must make key disclosers to potential donors. If there is a failure to disclose, fines may apply to the authority holder, and in certain circumstances to the participant as well.

Authority holders are responsible for ensuring participants make required disclosures

Authority (or deemed authority) holders must:

• ensure that persons conducting or participating in the fundraising appeal comply with the Act and Regulations and Authority Conditions
• develop and exercise appropriate controls, policies and procedures to ensure participants involved in collections are accountable and act with integrity.

Participants must disclose the purpose of the charity or appeal

Under Principle 1 of the National Fundraising Principles, all authority holders must ensure participants always explain the charitable purpose to donors.

Participants must answer questions honestly

The National Fundraising Principles contain rules to ensure participants answer questions about a fundraising appeal honestly, accurately and transparently.

If questioned about a fundraising appeal, a person conducting or participating must do the following when responding:

• honestly answer any questions in relation to purpose or details of the appeal, or arrange to find answers or follow up responses if unsure or unable to answer at the time
• clearly inform the person being solicited regarding the nature of donations (one-off or ongoing) and how to end ongoing donations
• provide reasonable information on how gross income and any articles obtained from the appeal will be distributed
• provide information on what is to happen to any goods and materials collected
• provide reasonable information relating to fundraising appeals jointly conducted with a trader
• inform the person being solicited of the source from which the person’s name and other details were obtained, if requested
• inform the person solicited that the person’s name and details will be removed as soon as practicable from the source of information, if requested.

All authorised fundraisers should provide all participants and traders with information and written instructions to ensure accurate and consistent responses are given.

The requirements of participants should be contained in the internal policies of the authority (or deemed authority) holder.

What participants must disclose during a phone, online or mail appeal

If a participant is involved in an appeal other than by face-to-face solicitations (for example by telephone, online or mail) and they receive a wage, commission or participation fee, they must disclose to any potential donor:

• that they are employed, whether this information is requested
• the name of their employer for the purposes of the appeal.

Penalties may apply to participants who fail to disclose this information.

What participants must disclose when acting for a trader (commercial fundraiser)

If the participant is acting for a trader (commercial fundraiser), they must disclose this as stated in Principle 10 of the National Fundraising Principles.

Complying with Australian Consumer Law

The Australian Consumer Law (ACL) is a law for fair trading and consumer protection that applies nationally and in all States and Territories of Australia. The ACL applies to activities in trade or commerce, whether or not carried out for profit. Charities and fundraisers carrying out activities in trade or commerce have obligations under the ACL.

Follow ACCC guidance to determine if activities are in trade or commerce

When considering whether your activities are in trade or commerce, you need to consider the characteristics of the activity – not just your organisational structure or whether your organisation is for profit or not. You may be acting in trade or commerce for some activities but not others. Determining whether a fundraising activity is undertaken in trade or commerce depends on the individual facts of the case.

The ACCC has issued guidance for charities to use in their compliance with the ACL, which is published at www.consumerlaw.gov.au.

The guidance states, broadly, that your organisation is likely to be engaged ‘in trade or commerce’ and have certain obligations under the ACL if it:

• engages in a fundraising activity involving a supply of goods or services
• is a for-profit professional fundraiser (for example a joint trader)
• is fundraising in an organised, continuous and repetitive way.

Obligations under the ACL

A person's obligations under the ACL vary depending on the fundraising activity. Generally, you must not:

• engage in misleading or deceptive or unconscionable conduct
• make false or misleading representations when supplying goods or services
• use harassment or coercion.

Some consumer guarantees would also apply to fundraising activities involving the sale of goods or services.

For more information and examples, visit the ACL Guide to the ACL for Fundraisers.