Fundraising Appeals and Consumer Acts Amendment Act 2009

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					Fundraising Appeals and Consumer Acts Amendment Act 2009
No. 2 of 2009

TABLE OF PROVISIONS
Section PART 1—PRELIMINARY 1 2 Purposes Commencement Page 1 1 2

PART 2—AMENDMENTS TO THE FUNDRAISING APPEALS ACT 1998 3 4 5 6 7 8 Principal Act Change of title New section 2A inserted 2A Object Meaning of fundraising appeal Meaning of conduct a fundraising appeal New sections 12A and 12B inserted 12A Portion of funds received for supply of goods or services directed to fundraising to be disclosed 12B Condition concerning manner of disclosure of portion of funds to be directed to fundraising Section 13 repealed New section 15A inserted 15A Direct debit request form Exemption does not cover commercial fundraisers Guidelines on imposing conditions on registration Duration of registration New sections 20AAA and 20AA inserted 20AAA When duration of registration may be reduced 20AA Process for reducing duration of registration Renewal of registration Person may apply for review of Director's decision Automatic extension of notice of reduction of duration of registration Register Regulations

3 3 3 3 3 4 4 4 4 5 5 5 5 6 6 6 7 7 7 8 8 9 9 9

9 10 11 12 13 14

15 16 17 18 19

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Section 20 New sections 76 and 77 inserted 76 Change of title provision 77 Transitional provision relating to duration of registration Statute law revision

Page 9 9 10 10

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PART 3—AMENDMENTS TO OTHER ACTS AND REPEAL OF AMENDING ACT Division 1—Consequential amendments 22 23 24 Fair Trading Act 1999 Gambling Regulation Act 2003 Second-Hand Dealers and Pawnbrokers Act 1989

11 11 11 11 11 11 11 11 12 12 12 14 15 15 16 16 18 18

Division 2—Miscellaneous amendments 25 26 27 28 29 30 31 32 Conveyancers Act 2006 Fair Trading Act 1999 Goods Act 1958—section 21 amended Goods Act 1958—new section 25A inserted 25A Contract of sale for goods forming part of bulk quantity Liquor Control Reform Act 1998 Travel Agents Act 1986 Trustee Companies Act 1984 Warehousemen's Liens Act 1958 10A Intermingled goods

Division 3—Repeal of amending Act 33 Repeal of amending Act ═══════════════

ENDNOTES

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Victoria

Fundraising Appeals and Consumer Acts Amendment Act 2009†
No. 2 of 2009
[Assented to 10 February 2009]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes The main purposes of this Act are— (a) to amend the Fundraising Appeals Act 1998— (i) to rename it as the Fundraising Act 1998; (ii) to insert an object provision;

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 2 Part 1—Preliminary

(iii) to require the portion of funds received for the supply of goods or services that are to be directed to fundraising to be disclosed; (iv) to enable the Director to reduce the duration of a fundraiser's registration; (b) to make consequential and miscellaneous amendments to several other Acts including— (i) the Goods Act 1958 in relation to contracts of sale for goods forming part of a bulk quantity and to the Warehousemen's Liens Act 1958 in relation to such goods that are deposited with warehousemen; (ii) the Liquor Control Reform Act 1998 in relation to security cameras in licensed premises. 2 Commencement (1) This Act (except sections 6(2), 7, 8, 10 and 11) comes into operation on the day after the day on which it receives the Royal Assent. (2) Subject to subsection (3), sections 6(2), 7, 8, 10 and 11 come into operation on a day or days to be proclaimed. (3) If section 6(2), 7, 8, 10 or 11 does not come into operation before 1 November 2009, it comes into operation on that day. __________________

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 2—Amendments to the Fundraising Appeals Act 1998 s. 3

PART 2—AMENDMENTS TO THE FUNDRAISING APPEALS ACT 1998

3 Principal Act In this Part, the Fundraising Appeals Act 1998 is called the Principal Act.
See: Act No. 78/1998. Reprint No. 2 as at 1 August 2007 and amending Act Nos 2/2008 and 4/2008. LawToday: www. legislation. vic.gov.au

4 Change of title In the title of the Principal Act omit "Appeals". 5 New section 2A inserted After section 2 of the Principal Act insert— "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.".

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 6 Part 2—Amendments to the Fundraising Appeals Act 1998

6 Meaning of fundraising appeal (1) After section 5(2)(c) of the Principal Act insert— "(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;". (2) Section 5(3)(d) of the Principal Act is repealed. 7 Meaning of conduct a fundraising appeal In section 6(3)(b) of the Principal Act, after "commercial fundraiser" (where secondly occurring) insert "irrespective of whether the commercial fundraiser is an agent of the person". 8 New sections 12A and 12B inserted After section 12 of the Principal Act insert— "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. Penalty: In the case of a corporation, 240 penalty units. In any other case, 120 penalty units.

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 2—Amendments to the Fundraising Appeals Act 1998 s. 9

(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. 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.". 9 Section 13 repealed Section 13 of the Principal Act is repealed. 10 New section 15A inserted After section 15 of the Principal Act insert— "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

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 11 Part 2—Amendments to the Fundraising Appeals Act 1998

(c) is clearly expressed. Penalty: In the case of a corporation, 120 penalty units. In any other case, 60 penalty units.". 11 Exemption does not cover commercial fundraisers In section 16B(2) of the Principal Act, after "appeal" (where secondly occurring) insert "irrespective of whether the commercial fundraiser does so as an agent of the person or organisation". 12 Guidelines on imposing conditions on registration At the end of section 19C of the Principal Act insert— "(2) The Director, from time to time, may issue guidelines relating to the imposition of conditions under subsection (1). (3) The Director— (a) must publish the guidelines in the Government Gazette; and (b) may publish the guidelines on the Internet. (4) The guidelines take effect on the date of publication in the Government Gazette or such later date as is specified in the guidelines.". 13 Duration of registration (1) In sections 20(1)(a) and 20(3) of the Principal Act, for "12 months" substitute "3 years".

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 2—Amendments to the Fundraising Appeals Act 1998 s. 14

(2) After section 20(1)(a) of the Principal Act insert— "(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". 14 New sections 20AAA and 20AA inserted After section 20 of the Principal Act insert— "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. 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

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 15 Part 2—Amendments to the Fundraising Appeals Act 1998

(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.". 15 Renewal of registration In section 22(3) of the Principal Act, for "20A" substitute "20, 20AAA, 20AA, 20A". 16 Person may apply for review of Director's decision (1) In section 33J(1) of the Principal Act— (a) in paragraph (b), after "section" insert "12B,"; (b) after paragraph (c) insert— "(ca) to reduce the duration of a person's registration as a fundraiser;". (2) In section 33J(4) of the Act, after "subsection" (where first occurring) insert "(1)(ca),". 8

Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 2—Amendments to the Fundraising Appeals Act 1998 s. 17

17 Automatic extension of notice of reduction of duration of registration (1) In the heading to section 33L of the Principal Act, after "deregistration" insert "or reduction of duration of registration". (2) In section 33L(1)(a) of the Principal Act, after "section" insert "20AA(3) or". 18 Register In section 70A(3) of the Principal Act— (a) after paragraph (c) insert— "(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;"; (b) in paragraph (d)— (i) for "proportion" substitute "percentage"; (ii) after "been" insert "or will be". 19 Regulations Section 71(1)(c) of the Principal Act is repealed. 20 New sections 76 and 77 inserted After section 75 of the Principal Act insert— "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

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 21 Part 2—Amendments to the Fundraising Appeals Act 1998

as it applies to any period on or after that commencement, unless the contrary intention appears. 77 Transitional provision relating to duration of registration Despite section 13(1) of the Fundraising Appeals and Consumer Acts Amendment Act 2009, the registration, or renewal of registration, of a person as a fundraiser remains current for 12 months or for any longer period specified by the Director in a written notice given to the person on registration if— (a) before the commencement of that section, the person applied to register as a fundraiser or for renewal of registration; and (b) the Director subsequently registered, or is deemed to have registered, the person as a fundraiser.". 21 Statute law revision (1) In section 32(7) of the Principal Act, for "subsection (6); and" substitute "subsection (6).". (2) In section 61D(2) of the Principal Act, for '2006.".' substitute "2006.". __________________

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 3—Amendments to other Acts and Repeal of Amending Act s. 22

PART 3—AMENDMENTS TO OTHER ACTS AND REPEAL OF AMENDING ACT

Division 1—Consequential amendments 22 Fair Trading Act 1999 In Schedule 1 to the Fair Trading Act 1999, for "Fundraising Appeals Act 1998" substitute "Fundraising Act 1998". 23 Gambling Regulation Act 2003 In Schedule 6 to the Gambling Regulation Act 2003, clause 5 is repealed. 24 Second-Hand Dealers and Pawnbrokers Act 1989 In section 4(c) of the Second-Hand Dealers and Pawnbrokers Act 1989 omit "Appeals". Division 2—Miscellaneous amendments 25 Conveyancers Act 2006 After section 168(3) of the Conveyancers Act 2006 insert— "(4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.". 26 Fair Trading Act 1999 In section 3 of the Fair Trading Act 1999 for the definition of goods substitute— "goods includes— (a) in the definition of hire-purchase agreement, all chattels personal other than money or things in action;

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 27 Part 3—Amendments to other Acts and Repeal of Amending Act

(b) in any other case includes— (i) ships, aircraft and other vehicles; and (ii) animals (including fish); and (iii) minerals, trees and crops, whether on, under or attached to land or not; and (iv) gas, electricity, water, sewerage and telecommunications;". 27 Goods Act 1958—section 21 amended In section 21 of the Goods Act 1958, for "Where" substitute "Subject to section 25A, where". 28 Goods Act 1958—new section 25A inserted After section 25 of the Goods Act 1958 insert— "25A Contract of sale for goods forming part of bulk quantity (1) This section applies to a contract of sale for a specified quantity of unascertained goods of which some or all form part of a single bulk quantity of goods of the same kind (the bulk) if— (a) the bulk is identified, either in the contract or by subsequent agreement between the parties; and (b) the buyer has paid for some or all of the goods that form part of the bulk. (2) Unless the parties agree otherwise, as soon as both of the conditions referred to in subsection (1) have been met— (a) property in an undivided share in the bulk is transferred to the buyer; and

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 3—Amendments to other Acts and Repeal of Amending Act s. 28

(b) the buyer becomes an owner in common of the bulk. (3) The buyer's undivided share in the bulk at any time is such share as, at that time, is equivalent to the quantity of goods paid for and due to the buyer out of the bulk divided by the quantity of goods in the bulk. (4) If at any time the aggregate of all buyers' undivided shares in the bulk exceeds the whole of the bulk, those shares are to be reduced proportionately so that their aggregate is equal to the bulk. (5) If a buyer has paid for some only of the goods due to the buyer out of the bulk, any delivery to the buyer out of the bulk is to be attributed to the goods for which payment has been made. (6) Part payment for any goods is taken to be payment for a corresponding part of the goods. (7) A person who becomes an owner in common of the bulk is taken to consent to— (a) any delivery of goods out of the bulk to any other owner in common of the bulk, being goods that are due to that other owner under a contract to which this section applies; and (b) any dealing with, or removal, delivery or disposal of, goods in the bulk by any other owner in common of the bulk, but only to the extent of that other owner's undivided share in the bulk.

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 29 Part 3—Amendments to other Acts and Repeal of Amending Act

(8) No cause of action lies against any person by reason of that person having acted in accordance with subsection (7)(a) or (7)(b) in reliance on the consent that exists by virtue of that subsection. (9) Nothing in this section— (a) imposes an obligation on a buyer of goods out of the bulk to compensate any other buyer of goods out of the bulk for any shortfall in the quantity of goods received by that other buyer; or (b) affects any contract or other arrangement between buyers of goods out of the bulk for adjustments between themselves; or (c) affects the rights of any buyer under a contract to which this section applies. (10) This section does not apply to a contract of sale entered into before the commencement of section 28 of the Fundraising Appeals and Consumer Acts Amendment Act 2009.". 29 Liquor Control Reform Act 1998 (1) For section 18B(2) of the Liquor Control Reform Act 1998 substitute— "(2) In relation to licensed premises the licence for which includes a condition requiring the premises to be fitted with security cameras, the regulations may prescribe the testing of the security cameras to ensure compliance with any standard referred to in subsection (1) including—

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 3—Amendments to other Acts and Repeal of Amending Act s. 30

(a) prescribing any standard, rule, guideline, specification or method formulated for the testing of the security cameras; (b) prescribing the times at which tests must be made; (c) prescribing the persons or class of persons who are to carry out the tests.". (2) After section 180(3)(c) of the Liquor Control Reform Act 1998 insert— "(ca) may be made so as to incorporate, adopt or apply wholly or partially or as amended by the regulations, the provisions of any document, standard, guideline, rule, specification or method formulated, issued, prescribed or published by any authority or body whether— (i) as formulated, issued, prescribed or published at the time the regulation is made or at any time before the regulation is made; or (ii) as amended from time to time;". 30 Travel Agents Act 1986 In section 21(3) of the Travel Agents Act 1986, for "subsection (1)(b)" substitute "subsection (1)(c)". 31 Trustee Companies Act 1984 (1) In section 52(5) of the Trustee Companies Act 1984, for "January, April, July" substitute "February, April, August".

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 32 Part 3—Amendments to other Acts and Repeal of Amending Act

(2) In Schedule 2 to the Trustee Companies Act 1984— (a) for "ANZ Executors and Trustee Company Limited" substitute "ANZ Trustees Limited"; (b) for "Tower Trust Limited" substitute "Australian Executor Trustees"; (c) for "Tower Trust (SA) Limited" substitute "Australian Executor Trustees (SA) Limited"; (d) for "Perpetual Trustees Australia Limited" substitute "Perpetual Limited"; (e) for "Permanent Trustee Company Limited" substitute "Trust Company Fiduciary Services Limited"; (f) for "Trust Company of Australia Limited" substitute "Trust Company Limited". 32 Warehousemen's Liens Act 1958 After section 10 of the Warehousemen's Liens Act 1958 insert— "10A Intermingled goods (1) This section applies to goods that have been deposited with a warehouseman by their owner, or by his or her authority, and that have become intermingled with other goods of the same kind owned by, or deposited with, the warehouseman so as to form a single bulk quantity (the bulk). (2) Unless the parties otherwise agree, as from the time the goods become part of the bulk— (a) the owner's property in the goods becomes property in an undivided share in the bulk; and

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Part 3—Amendments to other Acts and Repeal of Amending Act s. 32

(b) the owner becomes an owner in common of the bulk; and (c) subject to paragraph (d), the owner and warehouseman each have, in relation to the owner's undivided share in the bulk, the same obligations as they would have had in relation to the goods had they not become part of the bulk; and (d) the warehouseman's obligation to deliver the goods to, or to the order of, the owner becomes an obligation to deliver an equivalent quantity of goods out of the bulk to, or to the order of, the owner. (3) The owner's undivided share in the bulk at any time is such share as, at that time, is equivalent to the quantity of goods that have been deposited by the owner less the quantity of goods that have been delivered out of the bulk to, or to the order of, the owner. (4) If at any time the aggregate of all owners' undivided shares in the bulk exceeds the whole of the bulk, those shares are to be reduced proportionately so that their aggregate is equal to the bulk. (5) A person who becomes an owner in common of the bulk is taken to consent to— (a) any delivery of goods out of the bulk to any other owner in common of the bulk, being goods to which this section applies; and (b) any dealing with, or removal, delivery or disposal of, goods in the bulk by any other owner in common of the bulk, but only to the extent of that other owner's undivided share in the bulk.

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 s. 33 Part 3—Amendments to other Acts and Repeal of Amending Act

(6) No cause of action lies against any person by reason of that person having acted in accordance with subsection (5)(a) or (5)(b) in reliance on the consent that exists by virtue of that subsection. (7) This section does not apply to goods deposited with a warehouseman before the commencement of section 32 of the Fundraising Appeals and Consumer Acts Amendment Act 2009.". Division 3—Repeal of amending Act 33 Repeal of amending Act This Act is repealed on 1 November 2010.
Note The repeal of this Act does not effect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Fundraising Appeals and Consumer Acts Amendment Act 2009 No. 2 of 2009 Endnotes

ENDNOTES
†

Minister's second reading speech— Legislative Assembly: 9 October 2008 Legislative Council: 4 December 2008 The long title for the Bill for this Act was "A Bill for an Act to rename the Fundraising Appeals Act 1998 as the Fundraising Act 1998, to make various other amendments to that Act and other Acts and for other purposes."

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