The year 2020 saw significant moves by the Commonwealth Government to advance harmonisation of state-based fundraising regulations after the recommendations of 2018’s Senate Select Committee on Fundraising in the 21st Century. Harmonisation of fundraising law is a significant development that will lead to a reduction in red tape that costs fundraisers nearly $16 million annually. Under the existing regime, the need for charitable fundraising organisations to comply with different permission and reporting requirements for every single fundraising campaign and appeal is not only costly but also burdensome.
Despite this progress, FIA notes that it has taken eight years since the establishment of the Australian Charities and Not-for-profits Commission (ACNC) in 2012 to reach this stage, and we have not arrived yet at the destination. There is still much work to do, and it is essential there be a better and quicker way to achieve reform.
The new National Federation Reform Council agreed to by the premiers and chief ministers of the states/territories and the Prime Minister in 2020 will change the way the commonwealth and states/territories governments effectively and productively work together to address new areas of reform. The new model will streamline processes and avoid endless meetings that do not result in action. FIA has long been an advocate for red-tape reform for its members and the broader sector and will continue to push for a nationally consistent set of regulations by state and territory regulators to achieve cross-jurisdictional harmonisation.
FIA’s position has always been that any proposal for a mandatory national code is problematic and doomed to fail because it is contemplated to replace existing state regulation. However, that cannot happen if the states do not repeal their own set of regulations. The states have never shown interest in repealing their fundraising laws given they are on the hook for fundraising activity in their individual jurisdictions. The proposed cross-border model is a far better option, and the states/territories have already
begun taking tentative steps towards harmonisation under the auspices of NSW and with the support of the Assistant Minister for Charities.
Any proposed new ‘codes’ would be black letter law by another name. In sectors where a mandatory code has been imposed (examples include franchising, food and grocery, oil, unit pricing) a breach of the code is a breach of the Competition and Consumer Act and can be enforced by the ACCC. If the ACCC takes court action and the court finds that the code has been breached, the court can order a range of remedies, including injunctions and damages. Financial penalties for breach of these mandatory codes can be severe.
Generally, these mandated codes have been imposed on sectors where there has been a serious and systemic market failure. In some cases, the suppliers of large corporates have been the victims of market power asymmetries; in other cases, it is consumers who have needed protection. FIA argues that charitable fundraising in Australia is by no means ‘broken’ and therefore does not need this kind of regulatory ‘solution.’ Further, the current Liberal
government is known for its deregulation and and ‘handsoff’ philosophy, so it seems unlikely they would move to adopt this kind of regulatory letter of the law.
FIA’s position remains that we continue to push for harmonisation of fundraising regulation across all states and territories, to achieve this in 2021.
Our proposed plan
- Meet with all regulators and relevant ministers to further assist in the development of the in-progress harmonisation model.
- Continue to support the current government and the Assistant Treasurer to ensure harmonisation is achieved, including advancing our position that, as states won’t relinquish their control of fundraising, we need to find a consistent set of ‘rules’ for all states to follow.
- Clarify our approach and gather support from within and outside the sector.