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This is a Bill, not an Act. For current law, see the Acts databases.
CHARITABLE COLLECTIONS BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
Charitable
Collections Bill 2003
Contents
Page
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
Charitable
Collections Bill 2003
A Bill for
An Act to regulate collections for charities, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Charitable Collections Act 2003.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act.
For example, the signpost definition
‘collection—see section 7.’ means that the
expression ‘collection’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Objects and key
concepts
The objects of this Act are—
(a) to promote proper management and administration of collections;
and
(b) to ensure proper record-keeping and auditing of accounts for
collections; and
(c) to ensure that the public has access to information about
collections.
(1) For this Act, a collection is the soliciting or
receiving by a person of money or a benefit if, before or during the soliciting
or receiving, the person represents that the purpose of the soliciting or
receiving, or that the purpose of an activity or enterprise of which the
soliciting or receiving is part, is or includes a charitable purpose.
(2) For subsection (1), it is immaterial whether the money or benefit is
solicited or received—
(a) in person; or
(b) by post, telephone, email, fax or other means; or
(c) as a donation or otherwise.
Examples for par (c)
1 by participation in a lottery, art union or competition
2 by placing clothing in a clothing bin operated by a charity
3 by giving goods to an op-shop
4 by sponsorship for a walkathon, telethon or similar event
5 in relation to the supply of food, entertainment or other goods or
services
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) A collection does not include the following:
(a) soliciting or receiving money or a benefit from the carrying out of an
approved lottery or exempt lottery, other than an exempt lottery for a
charitable purpose;
(b) soliciting or receiving a bequest under a will;
(c) soliciting a person to become a member of an entity or to pay the
joining or membership fee of an entity;
Note Entity includes an individual, corporation and
unincorporated body, see Legislation Act, dict, pt 1, defs entity
and person.
(d) soliciting or receiving money or a benefit by, or on behalf of, an
entity on premises owned or leased by the entity from members and guests solely
or mainly for the entity’s purposes;
(e) soliciting or receiving money or a benefit solely or mainly from
people sharing a common employer, principal or workplace by one of those people
for a purpose connected directly with another of those people or with a relative
or domestic partner of another of those people;
Note Domestic partner is defined in the Legislation Act, s
169.
(f) soliciting or receiving money or a benefit from an Australian
government (including a local government) or a public entity created by, or that
represents in any capacity, an Australian government (including a local
government);
(g) anything else declared under the regulations not to be a
collection.
Example for par (d)
a collection taken up during a church service
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) In this section:
approved lottery means an approved lottery under the
Lotteries Act 1964 or a lottery, scheme or competition approved under a
corresponding State law.
exempt lottery means—
(a) an exempt lottery under the Lotteries Act 1964; or
(b) a lottery, scheme or competition that is exempt under a corresponding
State law.
8 Who
conducts a collection
(1) For this Act, a person conducts a collection if the
person organises or manages, or assists in organising or managing, the
collection in any capacity other than as an employee or agent.
Note A person acting in the capacity of an employee or agent
takes part in a collection, see s 9 (1) (b).
(2) For subsection (1), it is immaterial whether the
person—
(a) is a volunteer or is being paid; or
(b) is the only person taking part in the collection; or
(c) acts in person or by an employee or agent; or
(d) is acting on the person’s own behalf or as an executive officer
of an entity.
Note Entity includes an individual, corporation and
unincorporated body, see Legislation Act, dict, pt 1, defs entity
and person.
(3) Despite subsection (1), if a commercial fundraiser conducts all or
part of a collection for someone else (the principal) who is
conducting the collection, a reference in this Act to a person who
conducts the collection includes a reference to the commercial
fundraiser in relation to any aspect of the collection conducted by the
commercial fundraiser.
(4) To remove any doubt, subsection (3) does not prevent the application
of this Act to the principal in relation to any aspect of the collection
(including any aspect conducted by the commercial fundraiser), and, in
particular, does not relieve the principal of the principal’s obligation
to ensure that this Act is fully complied with in relation to the
collection.
9 Who
takes part in a collection
(1) For this Act, a person takes part in a collection
if—
(a) the person solicits or receives money or a benefit for the purposes of
the collection; or
(b) the person organises or manages, or assists in organising or managing,
the collection as an employee or agent.
(2) To remove any doubt, a person who conducts a collection also
takes part in the collection if the person solicits or receives
money or a benefit for the purposes of the collection.
10 Meaning
of proceeds of a collection
For this Act, the proceeds of a collection
means—
(a) money or benefits received for the purposes of the collection;
and
(b) money or benefits obtained, directly or indirectly, because of the
carrying out of the collection; and
(c) money or benefits derived, whether completely or partly or directly or
indirectly, from money or benefits mentioned in paragraph (a) or (b).
For this Act, benefit includes—
(a) property (other than money); and
(b) any gain or reward.
Note Property is defined in the Legislation Act, dict, pt
1.
12 Meaning
of commercial fundraiser
For this Act, a commercial fundraiser, for a collection, is a
person who is engaged on a commercial basis by a person conducting the
collection to conduct all or part of the collection for the other
person.
For this Act, a licensee is the holder of a
licence.
Note For the application of this Act to a licence issued to an
unincorporated body, see div 4.2 (Unincorporated bodies).
Part
3 Collections—offences
14 Unlawfully
conducting collections
(1) A person commits an offence if—
(a) the person conducts a collection; and
(b) the person is not authorised by a licence to conduct the
collection.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(2) This section does not apply if the person is authorised to conduct the
collection by the licensee for the licence authorising the conduct of the
collection.
(3) An offence against this section is a strict liability
offence.
15 Unlawfully
taking part in collections
(1) A person commits an offence if—
(a) the person takes part in a collection; and
(b) the person is not authorised by the relevant licensee to take part in
the collection; and
(c) either—
(i) the person knows that he or she is not authorised to take part in the
collection; or
(ii) the person is reckless about whether he or she is authorised to take
part in the collection.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(2) This section does not apply to the licensee for the licence
authorising the conduct of the collection.
(3) In this section:
relevant licensee, for a person taking part in a collection,
means the licensee for the licence authorising the conduct of the
collection.
16 Identifying
tags to be displayed when collecting personally
(1) A person commits an offence if—
(a) the person takes part in a collection; and
(b) while taking part in the collection, the person personally solicits or
receives money or a benefit from someone else for the purposes of the
collection; and
(c) the person is not displaying a complying identifying tag while the
person solicits or receives the money or benefit.
Maximum penalty: 50 penalty units.
(2) This section does not apply to a person who takes part in a collection
by post or telephone, email, fax or other electronic means.
(3) An offence against this section is a strict liability
offence.
(4) In this section:
complying identifying tag, for a person taking part in a
collection, means a badge or tag that—
(a) does not contravene any conditions of the licence authorising the
conduct of the collection; and
(b) complies with any requirements prescribed under the
regulations.
17 Required
information to be given for collections
(1) A person commits an offence if—
(a) the person takes part in a collection; and
(b) the person solicits or receives money or a benefit from someone else
for the purposes of the collection; and
(c) before soliciting or receiving the money or benefit the person fails
to make available, or offer to make available, the required information (if any)
in an approved way to the person from whom the money or benefit is solicited or
received.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
(3) In this section:
approved way, for a collection, means—
(a) any way required by the conditions of the licence authorising the
conduct of the collection; and
(b) any way prescribed under the regulations.
required information, for a collection,
means—
(a) any information about the collection required by the conditions of the
licence authorising the conduct of the collection; and
(b) any information prescribed under the regulations.
Examples
1 A charity holds a licence authorising it to conduct collections in
conjunction with retail businesses. A fast food company is authorised by the
charity to conduct a collection for the charity based on sales over a particular
period. The licence conditions require each advertisement for the collection to
state the following information (the required
information):
• the amount per sale or item sold that will be given to the
charity
• the period over which the collection will be carried out
• the collection is authorised by the charity.
The licence conditions also require the fast food company to display
brightly coloured triangular signs of a certain size (the approved
way) containing the information in each outlet for the period of the
collection.
2 A charity holds a licence authorising it to conduct a particular
collection. The charity engages a commercial fundraiser to conduct the
collection for it. The licence conditions provide that if the licensee engages
a commercial fundraiser, each advertisement for the collection must state the
following information (the required information):
• the licensee has engaged a named commercial fundraiser for the
collection
• the amount of remuneration payable to the commercial fundraiser or
how the remuneration is to be calculated.
The licence conditions also require each person taking part in the
collection to display, in addition to (or as part of) a complying identifying
tag (the approved way), a statement to the effect that the
collection is being conducted by the named commercial fundraiser.
3 A charity holds a licence to conduct collections through clothing bins
located in shopping centres. The licence conditions require the clothing bins
to display a statement (the required information) in a particular
form (the approved way) about who benefits from the collection.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
18 False
or misleading information about collections etc
(1) A person commits an offence if—
(a) the person is conducting or taking part in a collection; and
(b) the person gives information about the collection, or something
required or permitted to be done under this Act in relation to the collection,
to someone else; and
(c) the person does so knowing that the information—
(i) is false or misleading; or
(ii) omits something without which the information is
misleading.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Note 1 For other offences about false or misleading statements to
the chief executive in relation to applications etc, see s 60.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) A person commits an offence if—
(a) the person is conducting or taking part in a collection; and
(b) the person gives information about the collection, or something
required or permitted to be done under this Act in relation to the collection,
to someone else; and
(c) the person is reckless about whether the statement—
(i) is false or misleading; or
(ii) omits something without which the information is
misleading.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(3) Subsections (1) (c) (i) and (2) (c) (i) do not apply if the
information is not false or misleading in a material particular.
(4) Subsections (1) (c) (ii) and (2) (c) (ii) do not apply if the omission
does not make the information misleading in a material particular.
(5) In this section:
collection includes proposed collection.
19 False
or misleading documents about collections etc
(1) A person commits an offence if—
(a) the person is conducting or taking part in a collection; and
(b) the person produces a document to someone else; and
(c) the person does so knowing the document is false or misleading;
and
(d) the document contains information about the collection or something
required or permitted to be done under this Act in relation to the
collection.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Note 1 For other offences about false or misleading statements to
the chief executive in relation to applications etc, see s 60.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) Subsection (1) does not apply if the document is not false or
misleading in a material particular.
(3) Subsection (1) does not apply to a person who produces a document if
the document is accompanied by a signed statement—
(a) stating that the document is, to the signing person’s knowledge,
false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is, to the signing person’s knowledge, false or
misleading.
(4) The statement under subsection (3) must be signed by—
(a) the person; or
(b) if the person who produces the document is a corporation—by a
competent officer of the corporation.
(5) A person commits an offence if—
(a) the person is conducting or taking part in a collection; and
(b) the person produces a document to someone else; and
(c) the person is reckless about whether the document is false or
misleading; and
(d) the document contains information about the collection or something
required or permitted to be done under this Act in relation to the
collection.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(6) Subsection (5) does not apply if the document is not false or
misleading in a material particular.
(7) In this section:
collection includes proposed collection.
document includes a badge or tag.
produce includes display.
20 Alternative
verdicts for offences against s 18 and s 19
(1) This section applies if, in a prosecution for an offence against
section 18 (1) or 19 (1) (a primary offence), the trier of fact is
not satisfied that the defendant is guilty of the offence, but is satisfied
beyond reasonable doubt that the defendant is guilty of—
(a) for a prosecution for an offence against section 18 (1)—an
offence against section 18 (2) (an alternative offence);
or
(b) for a prosecution for an offence against section 19 (1)—an
offence against section 19 (5) (also an alternative
offence).
(2) The trier of fact may find the defendant guilty of the relevant
alternative offence but only if the defendant has been given procedural fairness
in relation to that finding of guilt.
Part
4 Licences to conduct
collections
Division
4.1 Issue and surrender of
licences
21 Application
for licence
(1) An entity may apply in writing to the chief executive for a licence
authorising the entity to conduct a collection.
Note 1 Entity includes an individual, corporation and
unincorporated body, see Legislation Act, dict, pt 1, defs entity
and person.
Note 2 A fee may be determined under s 63 (Determination of fees)
for this section.
Note 3 If a form is approved under s 64 (Approved forms) for an
application, the form must be used.
(2) If the entity is an unincorporated body, the application
must—
(a) be made by an executive officer of the body on behalf of the body;
and
(b) include the full name, address and contact telephone number of an
individual who is to be the nominated person for the body in relation to the
licence; and
(c) include, or be accompanied by, the written consent of the individual
to be the nominated person for the body in relation to the licence.
Note Nominated person is defined in s 30.
(3) An application may relate to a particular collection or collections,
particular kinds of collections, or collections generally.
(4) A single application may be made by 2 or more entities for licences
authorising each of them to conduct a collection or collections if each entity
is identified in the application.
22 Further
information etc
(1) The chief executive may, by written notice given to an applicant,
require the applicant to give the chief executive further stated information or
a stated document that the chief executive reasonably needs to decide the
application.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(2) If the applicant fails to comply with a requirement under
subsection (1), the chief executive may refuse to consider the application
further.
23 Decision
on application for licence
(1) On application for a licence, the chief executive must issue, or
refuse to issue, the licence.
(2) The chief executive must refuse to issue a licence—
(a) if satisfied that the purposes of the proposed collection to which the
application relates are not for, or do not include, a charitable purpose;
or
(b) for an application in relation to an entity that is not the
applicant—unless satisfied the entity has agreed to the
application.
Example for par (b)
A fast food company applies for a licence to conduct a sales promotion that
includes a payment to a charity for each sale of a particular kind made by the
company. The chief executive can issue the licence only if satisfied that the
charity has agreed to the application.
Note 1 Entity includes an individual, corporation and
unincorporated body, see Legislation Act, dict, pt 1, defs entity
and person.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The chief executive may refuse to issue a licence if satisfied that
the proposed collection to which the application relates will not be conducted
or carried out in a proper way (including in relation to the supervision of
people taking part in the collection).
(4) The chief executive may also refuse to issue a licence if satisfied
that—
(a) for an application by an individual—
(i) the person, or an associate of the person, has committed a
disqualifying act; or
(ii) the person is taking the benefit of any law for the relief of
bankrupt or insolvent debtors; or
(iii) any part of the person’s income is assigned for the benefit of
the person’s creditors; or
(b) for an application by a body—
(i) an executive officer, or an associate of an executive officer, of the
body has committed a disqualifying act; or
(ii) the body is an externally–administered body corporate;
or
(iii) if the body is an unincorporated body—the nominated person for
the body has committed a disqualifying act.
(5) This section does not limit the matters to which the chief executive
may have regard in making a decision on an application for a licence.
(6) In this section:
associate—a person is an associate
of someone else in relation to an application for a licence if the person can,
or will be able to, have a significant influence over, or in relation to, the
carrying out of a collection to which the application relates.
commit a disqualifying act includes engaging in a
disqualifying act.
disqualifying act means—
(a) a contravention of this Act or a corresponding State law, whether or
not the contravention is an offence; or
(b) an offence involving fraud or dishonesty of which the person has been
convicted or found guilty; or
(c) a contravention of a condition of a licence.
Note 1 For the meaning of found guilty, see
Legislation Act, dict, pt 1.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
externally-administered body corporate—see the
Corporations Act, section 9.
A licence is subject to the conditions (if any) stated in the licence or in
a document stated by the licence to form part of the licence.
A licence is issued for the period (not longer than 5 years) stated in the
licence.
26 Licence
not transferable
A licence is not transferable.
(1) A licence must include the following information:
(a) the licensee’s full name, address and contact telephone
number;
(b) if the licensee is a nominated person for an unincorporated
body—the name of the body;
(c) the collection or collections the licensee is authorised to conduct
under the licence;
(d) the purposes of the collection or collections authorised by the
licence;
(e) the date (or dates) when, or the period (or periods) over which, the
collection or collections are to be carried out;
(f) the form the collection or collections are to take;
(g) the period for which the licence is issued;
(h) any other information prescribed under the regulations.
Examples for par (f)
1 door-to-door
2 public place
3 clothing bin
4 telephone
5 letter
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A licence may also include any other information the chief executive
considers appropriate.
(3) To remove any doubt, a licence may authorise a particular collection
or collections, particular kinds of collections, or collections
generally.
28 Replacement
of licence
(1) The chief executive may issue a replacement licence to a licensee if
satisfied that the licence has been lost, stolen or destroyed.
(2) Before acting under subsection (1), the chief executive may require
the licensee to give the chief executive a statement, verified by a statutory
declaration signed by the licensee, that the licence has been lost, stolen or
destroyed.
Note 1 A fee may be determined under s 63 (Determination of fees)
for this section.
Note 2 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
Note 3 For how documents may be given, see Legislation Act,
pt 19.5.
(1) A licensee may apply in writing to the chief executive to surrender
the licence.
(2) The application must be accompanied by the licence.
(3) However, if the licence has been lost, stolen or destroyed, the
licensee must give the chief executive a statement, verified by a statutory
declaration signed by the licensee, that the licence has been lost, stolen or
destroyed.
Note 1 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
Note 2 For how documents may be given, see Legislation Act,
pt 19.5.
(4) On receiving the application, the chief executive may—
(a) accept the surrender of the licence; or
(b) refuse to accept the surrender of the licence if—
(i) action is being taken under division 4.3 (Amendment, suspension and
cancellation of licences) to suspend or cancel a licence; or
(ii) the licensee has failed to comply with part 5 (Application of
proceeds of collections).
(5) If the chief executive accepts the surrender of the licence, the
licence is taken to have ended.
Division
4.2 Unincorporated
bodies
30 Who
is the nominated person?
For this Act, the nominated person for an unincorporated body
in relation to a licence, or an application for a licence, is—
(a) the individual named in the application for the licence as the
individual who is to be the nominated person for the body in relation to the
licence; or
(b) if under section 33 (Change of nominated person) another individual is
the nominated person for the body in relation to the licence—that
individual.
31 Unincorporated
bodies—nominated person is licensee
(1) If a licence is issued to an unincorporated body, the nominated person
for the body in relation to the licence is taken to be the licensee.
Examples
1 If a notice or other document is required (or permitted) to be given
under this Act to the licensee of a licence issued to an unincorporated body,
the notice or other document must (or may) be given to the nominated person for
the body in relation to the licence to which the notice or document
relates.
2 If, under this Act, something must be done by the licensee of a licence
issued to an unincorporated body, the nominated person for the body in relation
to the licence to which the thing relates is required to do the thing. If
failure to do the thing is an offence, the nominated person commits the
offence.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, if at any time there is not a nominated person for the
unincorporated body in relation to the licence, the executive officers of the
body are jointly and severally taken to be the licensee.
Examples
1 The notice or other document mentioned in s (1), example 1 must (or may)
be given to any executive officer of the body.
2 For a thing to which s (1), example 2 applies, each executive officer of
the body is required to do the thing (or ensure that it is done). If failure to
do the thing is an offence, each executive officer commits the
offence.
32 Resignation
of nominated person
(1) This section applies to an individual who is the nominated person for
an unincorporated body in relation to a licence.
(2) The individual may resign as nominated person by written notice given
to—
(a) the chief executive; and
(b) an executive officer of the body.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(3) The executive officer who is given a notice under subsection (2) must
give written notice of the resignation to each other executive officer of the
unincorporated body as soon as practicable (but within 7 days) after the day the
officer receives the notice of resignation.
Maximum penalty: 5 penalty units.
(4) An offence against this section is a strict liability
offence.
33 Change
of nominated person
(1) An unincorporated body may, by written notice given to the chief
executive, nominate an individual (the relevant person) to be the
nominated person for the body in relation to a licence issued to the
body.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(2) The notice must—
(a) be given by an executive officer of the body on behalf of the body;
and
(b) include the relevant person’s full name, address and contact
telephone number; and
(c) include, or be accompanied by, the written consent of the relevant
person to be the nominated person for the body in relation to the
licence.
(3) On receipt of the notice by the chief executive, the relevant person
becomes the nominated person for the body in relation to the licence, and anyone
who was the nominated person for the body in relation to the licence immediately
before receipt of the notice ceases to be the nominated person.
Division
4.3 Amendment, suspension and
cancellation of licences
34 Amendment
of licence—application by licensee
(1) A licensee may apply in writing to the chief executive for the
amendment of the licence.
Note 1 A fee may be determined under s 63 (Determination of fees)
for this section.
Note 2 If a form is approved under s 64 (Approved forms) for an
application, the form must be used.
(2) The chief executive may, by written notice given to the applicant,
require the applicant to give the chief executive further stated information or
a stated document that the chief executive reasonably needs to decide the
application.
(3) If the applicant fails to comply with a requirement under
subsection (2), the chief executive may refuse to consider the application
further.
(4) The chief executive must amend the licence or refuse to amend the
licence.
(5) In deciding whether to amend the licence, the chief executive must
have regard to the matters mentioned in section 23 (2), (3) and (4) (Decision on
application for licence) as if the application to amend the licence were an
application for the issue of a licence.
(6) This section does not limit the matters to which the chief executive
may have regard in deciding whether to amend the licence.
(7) If the chief executive amends a licence under this section, the chief
executive must give the licensee an amended licence for the remainder of the
term of the licence amended.
Note A licensee must return the licence for amendment if required,
see s 39.
(8) An amendment has effect only if the amendment is included in the
licence to which the amendment relates.
(9) To remove any doubt, the amendment of a licence under this section may
include the imposition of a condition on the licence and the amendment of a
condition to which the licence is subject.
35 Amendment,
suspension or cancellation of licence—other grounds
(1) The chief executive may amend, suspend or cancel a
licence—
(a) if satisfied, on reasonable grounds, that a circumstance mentioned in
section 23 (2), (3) or (4) (Decision on application for licence) that would
allow the chief executive to refuse to issue a licence applies in relation to
the licence; or
(b) if the licensee contravenes a condition of the licensee’s
licence.
Examples for par (a)
1 a collection authorised to be conducted under the licence is not, or is
no longer, for a charitable purpose
2 the licensee has committed an offence against this Act
Note 1 For the power to require information or documents, see s
53.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) If the chief executive proposes to amend, suspend or cancel a licence
(the proposed action), the chief executive must give the licensee
a written notice that—
(a) states the proposed action, including any proposed amendment of the
licence or suspension period; and
(b) states the grounds for the proposed action; and
(c) tells the licensee that the licensee may, within 14 days beginning the
day after the day the licensee receives the notice, give a written response to
the chief executive about the matters in the notice.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(3) If the licensee is a nominated person for an unincorporated body, the
chief executive must also give a copy of the notice to an executive officer of
the body.
(4) In deciding whether to amend, suspend or cancel the licence, the chief
executive must consider any response given to the chief executive in accordance
with subsection (2) (c).
(5) If the chief executive is satisfied that grounds for taking the
proposed action have been established, the chief executive may—
(a) if the proposed action is to cancel the licence—cancel the
licence, suspend the licence for a period of not longer than 1 year or
amend the licence; or
(b) if the proposed action includes suspending the licence for a stated
period—suspend the licence for a period of not longer than that period or
amend the licence; or
(c) if the proposed action includes amending the licence—amend the
licence in a way that is no more onerous than the proposed amendment.
(6) To remove any doubt, the amendment of a licence under this section may
include the imposition of a condition on the licence and the amendment of a
condition to which the licence is subject.
36 Notice
and operation of decision to amend etc licence
(1) The chief executive must give the licensee written notice
of—
(a) the chief executive’s decision under section 35 (5);
and
(b) if the chief executive suspends or cancels the licence—the
effect of section 38 (Action to be taken by former licensee when licence
suspended or cancelled).
(2) If the licensee is a nominated person for an unincorporated body, the
chief executive must also give a copy of the notice to an executive officer of
the body.
(3) The amendment, suspension or cancellation of the licence takes effect
14 days after the day when notice of the amendment, suspension or cancellation
is given to the licensee or, if the notice states a later date of effect, that
date.
(4) If the chief executive amends a licence under section 35, the chief
executive must give the licensee an amended licence for the remainder of the
term of the licence amended.
Note A licensee must return the licence for amendment if required,
see s 39.
37 Directions
to licensee given notice of proposed suspension or
cancellation
(1) This section applies to a licensee if—
(a) the licensee is given a notice under section 35 (2) (Amendment,
suspension or cancellation of licence—other grounds); and
(b) the notice states that the chief executive proposes to suspend or
cancel the licensee’s licence.
(2) The chief executive may, in the notice or by later written notice,
give the licensee written directions in relation to any of the
following:
(a) the carrying out of any collection that the licensee has begun to
carry out, including, for example, stopping the carrying out of the
collection;
(b) the carrying out of any other collection, including, for example, not
beginning to carry out a new collection;
(c) the paying out or otherwise distributing or dealing with any proceeds
of a collection.
Note 1 For how documents may be given, see Legislation Act,
pt 19.5.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) A person commits an offence if the person contravenes a direction
given to the person under subsection (2).
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(4) To remove any doubt, a direction given under subsection (2) to a
person while the person is a licensee continues to apply to the person even if
the person ceases to be a licensee.
(5) This section is in addition to, and not limited by, section 38 and
section 51 (Chief executive may order distribution of proceeds).
(6) An offence against this section is a strict liability
offence.
38 Action
to be taken by former licensee when licence suspended or
cancelled
(1) If the chief executive suspends or cancels a licence under section 35
(Amendment, suspension or cancellation of licence—other grounds), the
person who is or was the licensee (the former
licensee)—
(a) must stop carrying out any collection that the former licensee was
carrying out under the licence immediately before the suspension or cancellation
took effect; and
(b) if the licence is suspended—must not resume carrying out any
collection authorised by the licence that the former licensee had stopped
carrying out, or begin to carry out any new collection under the licence, until
the suspension ends; and
(c) if the licence is cancelled—must not resume carrying out any
collection authorised by the licence that the former licensee had stopped
carrying out, or begin to carry out any new collection under the licence;
and
(d) must, within 3 days after the day the suspension or cancellation takes
effect, give the chief executive a statement of the proceeds of each collection
carried out by the former licensee under the licence, whether or not the
proceeds are still held by, or under the control of, the former licensee;
and
Note If a form is approved under s 64 (Approved forms) for the
statement, the form must be used.
(e) must not pay out or otherwise distribute or deal with any proceeds
held by, or under the control of, the former licensee of a collection carried
out by the former licensee under the licence except with the chief
executive’s written agreement and in accordance with any written
directions of the chief executive; and
(f) must pay out or otherwise distribute or deal with any proceeds held
by, or under the control of, the former licensee of a collection carried out by
the former licensee under the licence in accordance with any written directions
of the chief executive.
(2) The former licensee commits an offence if the former licensee
contravenes subsection (1).
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(3) An offence against this section is a strict liability
offence.
39 Failing
to return amended, suspended or cancelled licence
(1) A licensee commits an offence if—
(a) the licence is amended, suspended or cancelled; and
(b) the chief executive gives the licensee a written notice requiring the
licensee to return the licence to the chief executive within a stated reasonable
time; and
(c) the person does not comply with the requirement.
Maximum penalty: 5 penalty units.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(2) An offence against this section is a strict liability
offence.
Division
4.4 Register of
licences
(1) The chief executive must keep a register of licences.
(2) For each licence, the chief executive must enter in the register the
information mentioned in section 27 (1) (Form of licence).
(3) The register may also include any other information the chief
executive considers appropriate.
(4) The register may be kept in the form of, or as part of, 1 or more
computer databases or in any other form the chief executive considers
appropriate.
(5) The chief executive may correct any mistake, error or omission in the
register, subject to the requirements (if any) of the regulations.
41 Public
access to register
(1) Anyone may, without charge, inspect the register during ordinary
office hours.
(2) A person may obtain a copy of all or part of the register on payment
of reasonable copying costs.
42 Licensee
to notify change of name and address
(1) A licensee commits an offence if—
(a) the licensee’s name, address or contact telephone number shown
on the licence changes; and
(b) the licensee does not, as soon as practicable (but within 7 days)
after the change happens—
(i) tell the chief executive, in writing, of the change; and
(ii) return the licence to the chief executive for amendment.
Maximum penalty: 5 penalty units.
(2) The chief executive must give the licensee an amended licence for the
remainder of the period of the licence amended.
(3) An offence against this section is a strict liability
offence.
Part
5 Application of proceeds of
collections
In this part:
ends, for a licence, includes the ending of the licence by
cancellation or surrender of the licence.
licensee includes a person who has ceased to be a
licensee.
44 Proceeds
of collections
(1) A licensee commits an offence if the licensee fails to ensure that the
proceeds of a collection conducted by the licensee are applied only for the
purposes of the collection.
Maximum penalty: 50 penalty units.
Note An offence against this subsection is a strict liability
offence, see s (8).
(2) A licensee commits an offence if—
(a) a person (including the licensee) receives proceeds of a collection
conducted by the licensee; and
(b) the proceeds are applied other than for the purposes of the
collection; and
(c) the licensee knows that, or is reckless about the fact that, the
proceeds are so applied.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(3) This section does not apply to the deduction of lawful and proper
expenses in accordance with the conditions (if any) of the licensee’s
licence or the regulations.
(4) The regulations may make provision in relation to the expenses that
are, or are not, lawful and proper expenses for collections.
(5) This section is subject to any other Territory law (including the
doctrine of cy pres) about the application of trust property (including
money).
Note If a donor’s charitable intention is impossible or
impracticable to give effect to, under the cy pres doctrine the courts will
allow the intention to be given effect to as nearly as possible.
(6) Any other Territory law about trust property (including the doctrine
of cy pres) applies to any proceeds mentioned in subsection (1) that is not
trust property as if the proceeds were trust property.
(7) The proceeds of a collection may be applied outside the ACT, except to
the extent that to apply the proceeds in that way would
contravene—
(a) a Territory law (including this section); or
(b) a condition of the licence authorising the conduct of the
collection.
(8) An offence against subsection (1) is a strict liability
offence.
45 Payment
into trust bank account
(1) A licensee commits an offence if—
(a) the licensee receives money (including any proceeds of a benefit) for
the purposes of a collection conducted by the licensee; and
(b) the licensee fails to pay the money, in full and without any
deductions for expenses, into an account in accordance with this
section.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(2) The licensee must pay the money into a trust bank account that is used
exclusively for money received for the purposes of the collection or of
collections that include the collection.
(3) The money must be paid into the account as soon as practicable (but
within 5 banking days) after the day the licensee receives it.
(4) However, if the money is paid by direct deposit or electronic transfer
into another account kept by the licensee, the licensee must pay the money into
an account mentioned in subsection (2) on the next banking day after the day the
licensee becomes aware of the payment.
(5) An offence against this section is a strict liability
offence.
(6) In this section:
banking day, for an account that is kept at a branch of an
authorised deposit-taking institution, means a day (other than a Saturday or
Sunday) when the branch is open for business.
Note For the meaning of authorised deposit-taking
institution, see Legislation Act, dict, pt 1.
trust bank account means a trust account
that—
(a) is kept with an authorised deposit-taking institution; and
(b) has a name that indicates that it contains the proceeds of a
collection; and
(c) can only be operated by the signature of at least 2 people.
46 Investment
of collection money
Money (including any proceeds of a benefit) received by a licensee for the
purposes of a collection that is not immediately required to be applied for
those purposes is held by the licensee as trustee and may be invested only in a
way authorised by law for the investment of trust funds.
(1) A licensee commits an offence if—
(a) the licensee conducts a collection; and
(b) the collection is carried out over a period of 1 year or less;
and
(c) the licensee fails to ensure that the required accounts are finalised
within 90 days after the earlier of the following events:
(i) the day the collection ends;
(ii) the day the licence ends.
Maximum penalty: 50 penalty units.
(2) A licensee commits an offence if—
(a) the licensee conducts a collection; and
(b) the collection is carried out over a period of longer than 1 year;
and
(c) the licensee fails to ensure that the required accounts are finalised
within 90 days after the end of each 12-month period for which the collection is
carried out.
Maximum penalty: 50 penalty units.
(3) A licensee commits an offence if—
(a) the licensee conducts a collection; and
(b) the collection is carried out over a period of longer than 1 year;
and
(c) the licensee fails to ensure that the required accounts are finalised
within 90 days after the earlier of the following events:
(i) the day the collection ends;
(ii) the day the licence ends.
Maximum penalty: 50 penalty units.
Examples
1 Charity Inc is issued with a licence for 1 year. The licence authorises
2 collections: a doorknock appeal to be carried out over a weekend shortly
after the licence is issued and an ongoing collection to be carried out over the
period of the licence by donation tins placed on selected shop counters.
Under section 47, the required accounts for the doorknock must be finalised
within 90 days after the day the doorknock appeal ends and the required accounts
for the donation tins must be finalised within 90 days after the day the licence
ends.
Under section 48, a report about both collections must be given to the
chief executive within 120 days after the day the licence ends.
2 Charity Corp is issued with a licence for a period of 18 months to
conduct a collection over that period. However, the collection is actually
carried out only over the first 16 months of the period of the
licence.
Under section 47, the required accounts for the first 12-month period the
collection is carried out must be finalised within 90 days after the end of the
12-month period. The required accounts for the remaining period for which the
collection is carried out must be finalised within 90 days after the day the
collection ends (rather than within 90 days after the day the licence ends
because the ending of the collection is the earlier of the 2 events mentioned in
section 47 (3) (c)).
Under section 48, a report about the collection must be given to the chief
executive within 120 days after the end of the first 12-month period the
collection is carried out. A report about the collection for the remaining
period of the collection must be given to the chief executive within 120 days
after the licence ends.
3 If Charity Corp’s 18 month licence is surrendered 3 months after it
is issued, the required accounts under section 47 must be finalised within 90
days after the day the licence ends and the report under section 48 must be
given to the chief executive within 120 days after the day the licence
ends.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) To remove any doubt, the accounts required by subsection (2) are
annual accounts.
(5) An offence against this section is a strict liability
offence.
(6) In this section:
required accounts, for a collection, means—
(a) any accounts required by the conditions of the licence authorising the
conduct of the collection; and
(b) any accounts required under the regulations.
48 Reports
by licensee to chief executive
(1) A licensee must, in accordance with this section, give the chief
executive a report about all the collections conducted under the
licence.
Maximum penalty: 50 penalty units.
(2) The report must include the required information for each collection
to which the licence relates.
Note If a form is approved under s 64 (Approved forms) for the
return, the form must be used.
(3) A report under this section must be given to the chief
executive—
(a) for a licence issued for a period of 1 year or less—within 120
days after the day the licence ends; and
(b) for a licence issued for a period of longer than 1
year—
(i) within 120 days after the end of each 12-month period for which the
licence is in force; and
(ii) within 120 days after the day the licence ends.
Examples
See section 47 (3), examples.
Note 1 For how documents may be given, see Legislation Act,
pt 19.5.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) An offence against this section is a strict liability
offence.
(5) In this section:
required information includes any information required under
the regulations.
(1) The chief executive may, by written notice given to a licensee, direct
the licensee to give the chief executive, within a stated reasonable time, an
auditor’s report complying with this section about the accounts and
records kept in relation to a collection conducted by the licensee.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(2) The licensee commits an offence if—
(a) the licensee is given a notice under subsection (1); and
(b) the licensee intentionally fails to comply with the notice.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(3) The licensee commits an offence if—
(a) the licensee is given a notice under subsection (1); and
(b) the licensee fails to comply with the notice.
Maximum penalty: 50 penalty units.
Note An offence against this subsection is a strict liability
offence, see s (7).
(4) The report must be prepared by—
(a) a registered company auditor under the Corporations Act; or
(b) an auditor approved in writing by the chief executive for this
section.
(5) The auditor’s report must contain the auditor’s opinion
about—
(a) whether money (including any proceeds of a benefit) received during,
or for the purposes of, the collection has been properly accounted for and
applied in accordance with this Act; and
(b) whether the accounts and records for the collection have been properly
kept; and
(c) whether the accounts show a true and fair view of income and
expenditure in relation to the collection.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(6) To remove any doubt—
(a) a single auditor’s report under this section may be required for
2 or more collections; and
(b) an auditor’s report under this section may be required for part
of the period for which a collection is carried out.
(7) An offence against subsection (3) is a strict liability
offence.
(1) A licensee commits an offence if—
(a) the licensee carries out (or begins to carry out) a collection;
and
(b) the licensee fails to keep, in accordance with this section, records
for the collection.
Maximum penalty: 50 penalty units.
(2) The records must—
(a) allow a true and fair view of income and expenditure for the
collection to be worked out at any given time; and
(b) be kept in a way that allows them to be conveniently and properly
audited; and
(c) without limiting paragraph (a), include the details prescribed under
the regulations; and
(d) be kept by the licensee for 7 years (or, if the chief executive, in
writing, allows a shorter period, that period) after receipt of the income or
the incurring of the expenditure to which they relate.
(3) If the collection is, or was, carried out as part of a collection that
is carried out inside and outside the ACT, it is not necessary for the records
to be kept in a way that allows information to be identified only in relation to
the ACT.
(4) An offence against this section is a strict liability
offence.
51 Chief
executive may order distribution of proceeds
(1) This section applies if—
(a) a licence ends while a collection is being carried out under the
licence; or
(b) the collection ends before the licence authorising the conduct of the
collection ends, but the proceeds of the collection are not distributed for the
purposes of the collection within 90 days after the earlier of the following
events:
(i) the day the collection ends;
(ii) the day the licence ends.
(2) The chief executive may order the licensee to distribute all or any
part of the proceeds of the collection for the purposes of the collection.
(3) The order must—
(a) be in writing; and
(b) be given to the licensee; and
(c) state a reasonable time within which the distribution is to be made;
and
(d) contain a statement about the effect of this section.
Note For how documents may be given, see Legislation Act,
pt 19.5.
(4) A licensee commits an offence if the licensee—
(a) is given an order under this section; and
(b) intentionally contravenes the order.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
52 Chief
executive may appoint administrator
(1) This section applies if, in relation to a collection, a licensee
contravenes—
(a) a direction under section 37 (2) (Directions to licensee given notice
of proposed suspension or cancellation); or
(b) section 38 (1) (Action to be taken by former licensee when licence
suspended or cancelled); or
(c) an order under section 51 (2) (Chief executive may order distribution
of proceeds).
(2) The chief executive may, in writing, appoint a person as an
administrator for the collection.
(3) The administrator may—
(a) take possession of all of the proceeds of the collection; or
(b) prepare any accounts required under this Act in relation to the
collection; or
(c) apply the proceeds mentioned in paragraph (a) for the purposes of the
collection; or
(d) do anything else necessary to finalise the collection in accordance
with—
(i) any conditions of the licence authorising the conduct of the
collection; or
(ii) any requirements prescribed under the regulations.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(4) The administrator’s costs under this section are to be paid out
of the proceeds of the collection.
(5) To remove any doubt, an administrator may be appointed under this
section for 2 or more collections.
53 Chief
executive may require information or documents about
collections
(1) The chief executive may, by written notice given to a person, require
the person to give the chief executive, within a reasonable time stated in the
notice, stated information or documents that the chief executive considers
necessary to decide whether the person has complied with this Act.
Note 1 For how documents may be given, see Legislation Act,
pt 19.5.
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) The notice may state in what form the information is to be given to
the chief executive.
Example
The notice may require that the information be verified by a statutory
declaration.
Note 1 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The notice must—
(a) state that the requirement is made under this section; and
(b) contain a statement about the effect of this section.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(4) A person commits an offence if the person contravenes a notice given
to the person under this section.
Maximum penalty: 50 penalty units.
(5) The chief executive may take copies of any document provided under
this section.
(6) An offence against this section is a strict liability
offence.
(1) Each of the following is an authorised person for this
Act:
(a) a police officer;
(b) a public servant appointed under subsection (2).
(2) The chief executive may appoint a public servant as an authorised
person for this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) This section applies only to an authorised person appointed under
section 54 (2).
(2) The chief executive must give each authorised person an identity card
that states the person’s name and appointment as an authorised person, and
shows—
(a) a recent photograph of the person; and
(b) the date of issue of the card; and
(c) the date of expiry of the card; and
(d) anything else prescribed under the regulations.
(3) A person commits an offence if—
(a) the person ceases to be an authorised person; and
(b) the person does not return the person’s identity card to the
chief executive as soon as practicable (but within 7 days) after the day the
person ceases to be an authorised person.
Maximum penalty: 1 penalty unit.
(4) An offence against this section is a strict liability
offence.
56 Authorised
person’s power to require name and address
(1) An authorised person may require a person to state the person’s
name and address if the authorised person—
(a) finds the person committing an offence against this Act; or
(b) has reasonable grounds for believing that the person has just
committed an offence against this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) If an authorised person makes a requirement of a person under
subsection (1), the authorised person must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record those reasons.
(3) A person commits an offence if the person—
(a) contravenes a requirement under subsection (1); or
(b) states a false name or address in purported compliance with a
requirement under that subsection.
Maximum penalty: 5 penalty units.
(4) However, a person is not required to comply with a requirement under
subsection (1) if, when asked by the person, the authorised person does not
produce his or her identity card for inspection by the person.
(5) Subsection (4) does not apply in relation to an authorised person who
is a police officer in uniform.
(6) An offence against this section is a strict liability
offence.
Part
7 Review of
decisions
57 Meaning
of reviewable decision for pt 7
In this part:
reviewable decision means a decision of the chief executive
mentioned in an item in schedule 1, column 3 under a provision of this Act
mentioned in the item, column 2.
(1) If the chief executive makes a reviewable decision (other than a
decision mentioned in section 35 (5)), the chief executive must give written
notice of the decision to each person mentioned in schedule 1, column 4 in
relation to the decision.
Note Notice of a decision mentioned in s 35 (5) is dealt with in s
36 (1) and (2).
(2) The notice must be in accordance with the requirements of the code of
practice in force under the Administrative Appeals Tribunal Act 1989,
section 25B (1).
(3) In schedule 1, column 4:
licensee includes a person who has ceased to be a
licensee.
59 Review
by administrative appeals tribunal of reviewable decisions
A person may apply in writing to the administrative appeals tribunal for
review of a reviewable decision within 28 days after the day the person receives
notice of the decision.
60 False
or misleading statements in applications, returns etc to chief
executive
(1) In this section:
relevant matter means the following:
(a) an application for the issue or amendment of a licence;
(b) a response to the chief executive under section 35 (2) (Amendment,
suspension or cancellation of licence—other grounds);
(c) a response to a requirement made by the chief executive under section
53 (1) (Chief executive may require information or documents about collections);
(d) information required or permitted to be given under this Act to the
chief executive in relation to a licence or collection including, for example,
anything required under part 5 (Application of proceeds of
collections).
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A person commits an offence if—
(a) the person makes a statement (whether orally, in a document or in any
other way); and
(b) the person does so knowing that the statement—
(i) is false or misleading; or
(ii) omits something without which the statement is misleading;
and
(c) the statement is made in, or in relation to, a relevant
matter.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(3) Subsection (2) does not apply to a person who produces a document if
the document is accompanied by a signed statement—
(a) stating that the document is, to the signing person’s knowledge,
false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is, to the signing person’s knowledge, false or
misleading.
(4) The statement under subsection (3) must be signed by—
(a) the person; or
(b) if the person who produces the document is a corporation—by an
executive officer of the corporation.
(5) A person commits an offence if—
(a) the person makes a statement (whether orally, in a document or in any
other way); and
(b) the person is reckless about whether the statement—
(i) is false or misleading; or
(ii) omits something without which the statement is misleading;
and
(c) the statement is made in, or in relation to, a relevant
matter.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(6) Subsections (2) (b) (i) and (5) (b) (i) do not apply if the statement
is not false or misleading in a material particular.
(7) Subsections (2) (b) (ii) and (5) (b) (ii) do not apply if the omission
does not make the statement misleading in a material particular.
61 Alternative
verdict for offence against s 60
(1) This section applies if, in a prosecution for an offence against
section 60 (2), the trier of fact is not satisfied that the defendant is guilty
of the offence, but is satisfied beyond reasonable doubt that the defendant is
guilty of an offence against section 60 (5).
(2) The trier of fact may find the defendant guilty of the offence against
section 60 (5) but only if the defendant has been given procedural
fairness in relation to that finding of guilt.
62 Public
statements and warnings
(1) The Minister may make a public statement or issue a public warning
about any of the matters mentioned in subsection (2) if satisfied that it is in
the public interest to do so.
(2) For subsection (1), the matters are as follows:
(a) collection practices or activities generally or the collection
practices or activities of an entity (including commercial
fundraisers);
(b) income and expenditure details of a particular collection;
(c) the percentage of the proceeds raised in a particular collection that
have been distributed for the purposes of the collection;
(d) any other issue in relation to collections that, in the
Minister’s opinion, adversely affects, or is likely to adversely affect,
the interests of the public.
Note Entity includes an individual, corporation and
unincorporated body, see Legislation Act, dict, pt 1, defs entity
and person.
(3) The statement or warning may identify a particular entity.
(4) A civil proceeding does not lie against the Territory in relation to
loss, damage or injury of any kind to anyone because of the honest making of a
statement or warning under this section.
Note The Civil Law (Wrongs) Act 2002, s 59 provides a defence
of truth and public benefit to civil defamation actions.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The Minister may, in writing, approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
Note For other provisions about forms, see Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
65 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty
units for offences against the regulations.
Part
9 Transitional and other
provisions
66 Repeal
of Collections Act 1959
The Collections Act 1959 No 17 is repealed.
(1) This section applies to a licence in force under the Collections
Act 1959, section 4 (Licences) immediately before the repeal of the
Act.
(2) Despite the repeal of the Act, the licence continues in force, subject
to this Act, for the remainder of the period stated in the licence as if it were
a licence issued under this Act.
68 Regulations
modifying pt 9
The regulations may modify the operation of this part to make provision in
relation to any matter that is not, or is not in the Executive’s opinion
adequately, dealt with in this part.
This part expires 1 year after the day it commences.
70 Hawkers
Act 2003, section 4 (f)
omit
Collections Act 1959
substitute
Charitable Collections Act 2003
Schedule
1 Reviewable
decisions
(see s 57)
column 1
item
|
column 2
Act provision
|
column 3
reviewable decision
|
column 4
person to be notified
|
1
|
23 (1)
|
refusing to issue licence
|
applicant for licence
|
2
|
23 (1) and 24
|
issuing licence subject to conditions
|
applicant for licence
|
3
|
23 (1) and 25
|
issuing licence for less than the period applied for
|
applicant for licence
|
4
|
23 (1) and 27 (1)
|
issuing licence for collections other than the collections applied
for
|
applicant for licence
|
5
|
34 (4)
|
refusing to amend licence in way applied for
|
licensee
|
6
|
35 (5)
|
amending, suspending or cancelling licence
|
|
7
|
37 (2)
|
giving a direction
|
licensee
|
8
|
49 (4) (b)
|
refusing to approve auditor
|
licensee
|
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• body
• contravene
• Corporation Act
• entity
• individual
• law
• person
• State.
authorised person—see section 54.
benefit—see section 11.
charitable purpose includes any benevolent, philanthropic or
patriotic purpose.
collection—see section 7.
commercial fundraiser—see section 12.
conducts, for a collection—see section 8.
ends, for a licence and for part 5 (Application of proceeds
of collections)—see section 43.
executive officer means—
(a) for a corporation—a person (however described and whether or not
the person is a director of the corporation) who is concerned with, or takes
part in, the corporation’s management; and
(b) for an unincorporated body—a person (however described and
whether or not the person is a member of the governing body (if any) of the
unincorporated body) who is concerned with, or takes part in, the unincorporated
body’s management.
licence means a licence authorising an entity to conduct a
collection or collections for the purpose or purposes stated in the
licence.
licensee—
(a) see section 13; and
(b) for part 5 (Application of proceeds of collections)—see
section 43.
nominated person—see section 30.
proceeds, of a collection—see section 10.
reviewable decision, for part 7 (Review of
decisions)—see section 57.
takes part, in a collection—see section
9.
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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