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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Fundraising Appeals Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY MATTERS 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
4. Reference provisions 4
5. Meaning of "fundraising appeal" 5
6. Meaning of "conduct" a fundraising appeal 7
PART 2--PROVISIONS APPLYING TO ALL FUNDRAISING
APPEALS 9
7. False statements while seeking donations 9
8. False statements to employees, agents etc. concerning
compliance with the Act 10
9. Identification badges for collectors 10
10. Collection receptacles to be secure, numbered and labelled etc. 11
11. Use and emptying of receptacles to be properly supervised 12
12. Exceptions to sections 10 and 11 13
13. Additional requirements for clothing bins 13
14. Paid phone etc. canvassers must disclose that they are being paid 15
15. Letters etc. by commercial fundraisers must disclose certain
details 16
PART 3--PROVISIONS APPLYING TO PARTICULAR
FUNDRAISING APPEALS ONLY 18
Division 1--Application of this Part 18
16. This Part does not apply to some organisations 18
Division 2--Authorised Appeals 19
17. Offence to conduct unauthorised appeal 19
18. Notice of intention to conduct an appeal 19
19. Consent of intended beneficiaries also needed 21
20. Minister may approve or veto intended appeal 21
21. Deemed consent if no response within 21 days 22
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22. Permit in cases of urgency 23
23. Grant of permits 23
24. Person may apply for review of Minister's decision 24
Division 3--Conduct of Appeals 24
25. Appeals must be conducted in accordance with conditions
imposed and details given 24
26. 12 month limit on certain appeals 25
27. All appeal money must be banked 26
Division 4--Accounts and Records to be kept 27
28. Purpose and scope of this Division 27
29. Fundraisers must keep certain records and accounts 27
30. Other records that fundraisers must keep 29
31. Where and for how long records are to be stored 31
Division 5--Audit of Accounts and Records 31
32. Minister may require accounts to be audited 31
Division 6--Public Inspection of Accounts and Records 33
33. Public may inspect some records 33
PART 4--POWERS OF THE COURT 35
Division 1--Jurisdiction of the Court under this Act 35
34. Court may order person to stop conducting an appeal 35
35. Court may make a temporary order without notice 36
36. Court may make orders concerning wrongly obtained assets 37
37. Minister may refer question to Court for answer 38
38. Form of reference 39
Division 2--Procedure and Conduct of Matters under this Part 39
39. Powers of Court 39
40. Evidentiary provisions 39
41. Appearance of parties 40
42. Determination of Court 40
43. Effect of determination 40
PART 5--ENFORCEMENT PROVISIONS 41
44. Minister may demand information 41
45. Appointment of inspectors 42
46. Searches to monitor compliance with this Act 42
47. Offence-related searches and seizures 43
48. Occupier to be given copy of consent 44
49. Search warrant 44
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Clause Page
50. Announcement before entry 45
51. Copy of warrant to be given to occupier 46
52. Receipt must be given for any thing seized 46
53. Copies of certain seized things to be given 46
54. Use of equipment to examine or process things 47
55. Use or seizure of electronic equipment at premises 48
56. Compensation for damage caused during inspections 49
57. Return of seized things 49
58. Court may extend period 50
59. Power of inspector to require information or documents 50
60. Protection against self-incrimination 51
61. Inspectors etc. must not disclose information 51
PART 6--MISCELLANEOUS MATTERS 53
62. False statements 53
63. Role of designated person 53
64. Change of designated person 53
65. Presumption concerning the service of documents by post 54
66. Continuing offences 54
67. Extended time for prosecutions 55
68. Directors etc. of corporations etc. liable for certain offences 55
69. Delegation by Minister 56
70. Judicial notice concerning authorisations 56
71. Regulations 56
72. Transitional provision 57
73. Repeal of former Act 58
NOTES 59
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PARLIAMENT OF VICTORIA
A BILL
to regulate fundraising appeals, to repeal the Fundraising Appeals
Act 1984 and for other purposes.
Fundraising Appeals Act 1998
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is to regulate the raising
and application of money and other benefits for
5 non-commercial purposes from the public.
2. Commencement
(1) This section and section 1 come into operation on
the day this Act receives the Royal Assent.
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(2) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(3) If a provision of this Act does not come into
operation before 1 July 1999, it comes into
5 operation on that day.
3. Definitions
In this Act--
"benefit" includes any gain or reward;
"commercial fundraiser" means a person who is
10 retained on a commercial basis by another
person to administer all or part of a
fundraising appeal for the other person;
"conduct a fundraising appeal" has the meaning
set out in section 6;
15 "Court" means the Magistrates' Court of
Victoria;
"designated person" means the designated
person named by an incorporated association
or an unincorporated organisation under
20 section 18 or 64;
"fundraising appeal" has the meaning set out in
section 5;
"inspector" means a person authorised by the
Secretary under section 45;
25 "participate in a fundraising appeal" means to
solicit or receive any money or benefit for
the purposes of the appeal;
"public place" means--
(a) any public highway, road, street,
30 bridge, footway, footpath, court, alley,
passage or thoroughfare even though it
may be formed on private property;
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(b) any park, garden, reserve or other place
of public recreation or resort;
(c) any railway station, platform or
carriage;
5 (d) any wharf, pier or jetty;
(e) any passenger ship or boat to which the
public has access;
(f) any public vehicle;
(g) any market;
10 (h) any auction room or place while a sale
by auction is being conducted there;
(i) any place of public resort; or
(j) any open place to which the public
whether upon or without payment for
15 admittance have, or are permitted to
have, access.
but does not include--
(k) any State school or registered school or
any related land or premises;
20 (l) any land or premises owned or
occupied by a university, TAFE
College or other tertiary educational
institution;
(m) any land or premises owned or
25 occupied by a registered funded agency
within the meaning of the Health
Services Act 1988;
(n) any church, chapel or other premises or
related land that is owned or occupied
30 by a religious organisation;
"registrar" means registrar of the Court;
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"religious organisation" means an organisation
in respect of which a Proclamation is in force
under section 26 of the Marriage Act 1961 of
the Commonwealth;
5 "retention period" means a period of 45 days
after the seizure of a thing under Part 5;
"Secretary" means the Secretary to the
Department of Justice;
"unincorporated organisation" means a group
10 of people who--
(a) conduct an activity under a common
name; and
(b) maintain a list of members in relation to
the conduct of that activity.
15 4. Reference provisions
(1) A reference to a person in this Act includes a
reference to an incorporated association and to
each member of an unincorporated organisation.
(2) Despite sub-section (1), a reference to a person in
20 any provision creating an offence under this Act
does not include a reference to a member of an
unincorporated organisation unless it can be
proved that the member instigated or actively
engaged in, or consented to, the conduct that
25 constitutes the offence, or that the offence was
attributable to any wilful neglect by the member.
(3) For the purposes of this Act, a person is not a
member of an unincorporated organisation unless
she or he has consented to being a member of the
30 organisation.
(4) A reference to a party in relation to a court
proceeding is, in the case of an incorporated
association or an unincorporated organisation, a
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reference to the designated person of that
association or organisation.
(5) A reference in this Act--
(a) to "she or he", "he or she", "her or him" or
5 "him or her" is to be read as including a
reference to "it"; and
(b) to "her or his" or "his or her" is to be read as
including a reference to "its"--
if the context permits.
10 (6) A reference in this Act to "this Act" includes a
reference to the regulations.
5. Meaning of "fundraising appeal"
(1) A fundraising appeal occurs if a person solicits or
receives money or a benefit on the basis of a
15 representation that the soliciting or receiving is
not solely for the profit or commercial benefit of
the person or any other person, cause or thing on
whose behalf the person is soliciting or receiving
the money or benefit.
20 (2) For the purposes of this section, it does not matter
if--
(a) the person who solicits or receives the
money or benefit does not make the
representation;
25 (b) the representation was direct or indirect;
(c) the majority of the money or benefit is not to
be applied for the benefit of the person,
cause or thing on whose behalf it is solicited
or received;
30 (d) the person who solicits or receives the
money or benefit does so as a volunteer or is
paid for doing so.
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(3) Despite anything to the contrary in sub-section
(1), the following activities are not a fundraising
appeal--
(a) soliciting or receiving any money or
5 benefit--
(i) for the purposes of a patriotic fund
within the meaning of the Patriotic
Funds Act 1958; or
(ii) in relation to any raffle, lottery or other
10 activity authorised or permitted under
Part I of the Lotteries Gaming and
Betting Act 1966; or
(b) soliciting a person to become a member of
an organisation or to pay the joining or
15 membership fee of an organisation;
(c) the soliciting or receipt of any money or
benefit on behalf of an organisation from a
person--
(i) who is in the process of becoming a
20 member of the organisation; or
(ii) who was a member of the organisation;
or
(iii) who is a relative of, or who is
personally acquainted with, a member
25 of the organisation or any person
referred to in sub-paragraph (i) or (ii);
(d) soliciting a person to devise or bequeath any
property;
(e) soliciting or receiving money or a benefit
30 exclusively or predominantly from among
people sharing a common employer or
principal or place of work if the soliciting or
receiving--
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(i) is carried out by one of those people;
and
(ii) is made on the basis of a representation
that the money or benefit will be
5 applied for a benevolent or
philanthropic purpose connected
directly with another of those people or
with the immediate family of another of
those people;
10 (f) soliciting or receiving money or a benefit
from--
(i) the Commonwealth, a State, a
Territory, a local government body or
any public authority or body created by,
15 or that represents in any capacity, the
Commonwealth, a State or a Territory;
(ii) a corporation, partnership or trust that
is permitted to donate money or
benefits for non-profit or non-
20 commercial purposes by its
memorandum of incorporation, articles
of association, partnership agreement,
trust deed or other empowering
document;
25 (g) any other activity that the regulations state is
not a fundraising appeal.
6. Meaning of "conduct" a fundraising appeal
(1) A person conducts a fundraising appeal if she or
he--
30 (a) organises the appeal in a capacity other than
that of an employee or agent; or
(b) is the sole participant in the appeal; or
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(c) is one of a number of participants in the
appeal, but is not participating in the appeal
as an employee or agent.
(2) In determining whether a person is conducting a
5 fundraising appeal, it does not matter whether the
person is acting as a volunteer or is being paid.
(3) If the only activity undertaken by a person in
conducting a fundraising appeal is to retain a
commercial fundraiser to administer the appeal,
10 any reference in this Act to the person conducting
the appeal is a reference to the commercial
fundraiser.
(4) If a person who conducts a fundraising appeal
retains a commercial fundraiser to administer part
15 of an appeal, a reference in this Act to the person
conducting the appeal is a reference--
(a) to the commercial fundraiser in respect of
any aspect of the appeal that is being
administered by the commercial fundraiser;
20 and
(b) to the person in respect of any other aspect
of the appeal (including any aspect that
encompasses the appeal as a whole, such as a
requirement to produce accounts relating to
25 the appeal).
_______________
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PART 2--PROVISIONS APPLYING TO ALL FUNDRAISING
APPEALS
7. False statements while seeking donations
(1) In conducting or participating in a fundraising
5 appeal, a person must not make or give any
representation or oral or written statement in
relation to the appeal to another person that
misleads or deceives, or that is likely to mislead or
deceive--
10 (a) the other person; or
(b) anyone else to whom the other person may
make, repeat or give the representation or
oral or written statement.
Penalty: In the case of a corporation,
15 240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
(2) It is a defence to a charge under sub-section (1) if
the person charged can show--
20 (a) that she or he reasonably believed that the
representation or statement was not
misleading or deceptive, and was not likely
to mislead or deceive; or
(b) that the statement was an accurate repetition
25 of information supplied by another person,
and that the person repeating or passing on
the statement had no reasonable grounds to
doubt that the information was true.
(3) However, a person may not rely on the defence
30 referred to in sub-section (2)(b) unless the person
gave the person bringing the charge at least 7 days
before the charge is heard a notice identifying the
person who supplied the information or, if that
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identity is not known, setting out all the
information the person charged has concerning the
person who supplied the information.
(4) Despite sub-section (3), the court before which the
5 charge is brought may permit a person to rely on
the defence referred to in sub-section (2)(b) even
though the person did not give the notice required
by sub-section (3) at least 7 days before the
charge is heard.
10 8. False statements to employees, agents etc. concerning
compliance with the Act
A person--
(a) who is conducting or is proposing to conduct
a fundraising appeal; or
15 (b) who is acting on behalf of a person who is
conducting or is proposing to conduct a
fundraising appeal--
must not represent to an employee, agent or
collector (whether voluntary or otherwise) that
20 any thing required or permitted by this Act to be
done in relation to the appeal has been done if it
has not been done.
Penalty: In the case of a corporation,
240 penalty units.
25 In any other case, 120 penalty units or
imprisonment for 12 months or both.
9. Identification badges for collectors
(1) If a person is in the course of conducting or
participating in a fundraising appeal--
30 (a) in a public place; or
(b) on the premises of a person from whom
money or a benefit is being solicited or
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received without the prior invitation of that
latter person--
she or he must wear an identifying badge in such a
way that the entire face of the badge is at all times
5 clearly visible.
Penalty: 10 penalty units.
(2) A person who is conducting a fundraising appeal
must issue an identifying badge to each person
participating in the appeal who is required by sub-
10 section (1) to wear an identifying badge and must
ensure that the badge--
(a) prominently displays the words "Paid
Collector" if the person to whom it is issued
is entitled, or expects, to be paid for
15 participating in the appeal (other than for
out-of-pocket expenses);
(b) prominently displays the words "Unpaid
Collector" if the person to whom it is issued
is not entitled, and does not expect, to be
20 paid for participating in the appeal (other
than for out-of-pocket expenses);
(c) complies with any other requirements
specified in the regulations.
Penalty: In the case of a corporation,
25 120 penalty units.
In any other case, 60 penalty units or
imprisonment for 6 months or both.
10. Collection receptacles to be secure, numbered and
labelled etc.
30 (1) A person who is conducting a fundraising appeal
must ensure that any receptacles that are used to
collect donations for the appeal that are in a public
place--
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(a) are securely constructed, properly sealed and
consecutively numbered; and
(b) are clearly labelled with--
(i) the name of the appeal; or
5 (ii) the name of the person conducting the
appeal and the person or class of people
or causes or things on whose behalf the
appeal is being conducted.
Penalty: In the case of a corporation,
10 120 penalty units.
In any other case, 60 penalty units or
imprisonment for 6 months or both.
(2) Despite sub-section (1), it is not necessary for the
person to ensure that a receptacle used to collect
15 money is properly sealed if every person who puts
money in the receptacle (or who gives money that
is to be put in the receptacle) is given a receipt in
a form authorised by the person conducting the
appeal.
20 (3) This section does not apply to receptacles used as
part of a highway collection carried out in
compliance with the Road Safety Act 1986 (or
any regulations made under that Act).
11. Use and emptying of receptacles to be properly
25 supervised
(1) A person who is conducting a fundraising appeal
must ensure that the use and emptying of any
receptacles that are used to collect money for the
appeal are supervised in a way that ensures, to the
30 maximum extent that is practicable in the
circumstances of the appeal--
(a) in the case of a fundraising appeal to which
Part 3 applies, that all the money is deposited
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in one of the accounts referred to in section
27;
(b) in any other case, that all the money is
collected and given to the person.
5 Penalty: In the case of a corporation,
120 penalty units.
In any other case, 60 penalty units or
imprisonment for 6 months or both.
(2) A person who is conducting a fundraising appeal
10 must ensure that the use and emptying of any
receptacles that are used to collect donations other
than money for the appeal are supervised in a way
that ensures, to the maximum extent that is
practicable in the circumstances of the appeal, that
15 all the donations are collected and properly
processed.
Penalty: In the case of a corporation,
120 penalty units.
In any other case, 60 penalty units or
20 imprisonment for 6 months or both.
12. Exceptions to sections 10 and 11
(1) The obligations imposed on a person by sections
10 and 11 are subject to any contrary obligations
imposed on the person by the Minister under
25 section 20 or 23.
(2) Sections 10 and 11 do not apply to receptacles
used in any circumstances specified for the
purposes of this sub-section by the regulations.
13. Additional requirements for clothing bins
30 (1) In this section, "clothing bin" means a receptacle
that is intended to be used for the receipt of
clothing (regardless of whether or not the
receptacle is also intended to be used for the
receipt of other things).
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(2) If one or more clothing bins are used in the course
of a fundraising appeal to receive donations for
the purposes of the appeal, the person conducting
the appeal must ensure that a written record is
5 kept of the following details--
(a) the total amount of funds that were raised as
a result of the donations to the bins; and
(b) what percentage of the donations were sold
or made available for sale, what percentage
10 of the donations were sold as scrap and to
whom (in broad categories) the sales were
made; and
(c) if any person is paid for collecting donations
from the bins or for processing or selling the
15 donations, what percentage of the proceeds
of the donations was paid to the person; and
(d) any other details required by the regulations.
Penalty: In the case of a corporation,
120 penalty units.
20 In any other case, 60 penalty units or
imprisonment for 6 months or both.
(3) A donation is made to a clothing bin if it is placed
in, or next to, the bin.
(4) A person conducting a fundraising appeal to
25 which sub-section (2) applies must ensure that the
required records are kept in a way that enables
them to be conveniently and properly audited.
Penalty: In the case of a corporation,
120 penalty units.
30 In any other case, 60 penalty units or
imprisonment for 6 months or both.
(5) In the case of a fundraising appeal to which Part 3
applies, the person conducting the appeal must
ensure that the details required by sub-section (2)
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accompany the accounts required by section
29(4).
Penalty: In the case of a corporation,
120 penalty units.
5 In any other case, 60 penalty units or
imprisonment for 6 months or both.
14. Paid phone etc. canvassers must disclose that they are
being paid
(1) This section applies to a person--
10 (a) who seeks donations to, or offers to sell
anything as part of, a fundraising appeal by
telephone or by any other method of spoken
direct personal communication involving
electronic or mechanical means; and
15 (b) who is entitled, or expects, to receive money
or some other financial reward for
participating in the appeal (other than for
out-of-pocket expenses).
(2) Before seeking a donation, the person must state
20 to the person from whom the donation is being
sought--
(a) the fact that the person seeking the donation
has been retained on a commercial basis to
seek the donation; and
25 (b) the name of the person who is employing (or
who has retained) the person seeking the
donation; and
(c) the name of the person on whose behalf the
donation is sought (if this name is different
30 from the name required by paragraph (b)).
Penalty: 10 penalty units.
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(3) Before offering to sell anything, the person must
state to the person to whom the offer is to be
made--
(a) the fact that the person making the offer has
5 been retained on a commercial basis to make
the offer; and
(b) the name of the person who is employing (or
who has retained) the person making the
offer; and
10 (c) the name of the person on whose behalf the
offer is being made (if this name is different
from the name required by paragraph (b)).
Penalty: 10 penalty units.
15. Letters etc. by commercial fundraisers must disclose
15 certain details
(1) This section applies if a commercial fundraiser
seeks donations to, or offers to sell anything as
part of, a fundraising appeal by any means of
communication to which section 14 does not
20 apply.
(2) In the case of any communication by means of a
document, the commercial fundraiser must ensure
that the document states--
(a) that the document has been sent or
25 distributed by the commercial fundraiser;
and
(b) that the commercial fundraiser has been
retained on a commercial basis to send or
distribute the document.
30 Penalty: In the case of a corporation,
240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
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(3) In the case of any other means of communication,
the commercial fundraiser must ensure that a
donation is not sought, and that an offer to sell is
not made, unless any person from whom the
5 donation is sought, or to whom the offer is made,
is informed of--
(a) the fact that the communication has been
made by the commercial fundraiser; and
(b) the fact that the commercial fundraiser has
10 been retained on a commercial basis to seek
the donation or make the offer by that means
of communication.
Penalty: In the case of a corporation,
240 penalty units.
15 In any other case, 120 penalty units or
imprisonment for 12 months or both.
_______________
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PART 3--PROVISIONS APPLYING TO PARTICULAR
FUNDRAISING APPEALS ONLY
Division 1--Application of this Part
16. This Part does not apply to some organisations
5 (1) This Part does not apply to the conduct of a
fundraising appeal by the following
organisations--
(a) a State school, council or registered school
under the Education Act 1958;
10 (b) a university, TAFE College or other tertiary
educational institution;
(c) a registered funded agency within the
meaning of the Health Services Act 1988;
(d) a religious organisation;
15 (e) a political party registered under Division
1A of Part 5 of The Constitution Act
Amendment Act 1958;
(f) a trade union registered under the Trade
Unions Act 1958;
20 (g) an organisation registered under the
Workplace Relations Act 1996 or the
Industrial Relations Act 1988 of the
Commonwealth;
(h) a person or organisation specified by the
25 regulations for the purposes of this section.
(2) The Minister may, by Order published in the
Government Gazette, declare that this section no
longer applies to an organisation or a class of
organisation.
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(3) This Part applies to an organisation or a class of
organisation that is the subject of such a
declaration while the declaration remains in force.
(4) Despite sub-section (1), if an organisation listed in
5 sub-section (1) retains a commercial fundraiser to
administer all of a fundraising appeal, this Part
applies to the organisation in respect of that
appeal.
Division 2--Authorised Appeals
10 17. Offence to conduct unauthorised appeal
A person must not conduct a fundraising appeal
unless she or he--
(a) notifies the Minister of the appeal under
section 18 and has, or is deemed to have, the
15 Minister's consent to the appeal; or
(b) holds a permit granted under section 23.
Penalty: In the case of a corporation,
240 penalty units.
In any other case, 120 penalty units or
20 imprisonment for 12 months or both.
18. Notice of intention to conduct an appeal
(1) A person who intends to conduct a fundraising
appeal must give the Minister written notice of her
or his intention at least 28 days before the date she
25 or he intends to start conducting the appeal.
(2) The notice must be in the form required by the
Minister and must state--
(a) the name of the person who intends to
conduct the appeal;
30 (b) whether that person is to derive any money
or benefit from the appeal;
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(c) if that person is a natural person, her or his
residential or principal business address in
Victoria;
(d) if that person is a corporation, the address in
5 Victoria of its registered office or principal
place of business;
(e) if that person is an incorporated association
or an unincorporated organisation, the name
and address of a natural person in Victoria
10 appointed for the purposes of this Act as the
designated person of the organisation;
(f) the date on which it is intended to hold, or
start, the appeal;
(g) the date on which it is intended to finish the
15 appeal (if any);
(h) either--
(i) the name of every person on whose
behalf the appeal is to be made; or
(ii) the common features shared by the
20 class of people for whose benefit the
appeal is to be made, and the means by
which the money or benefit is to be
transmitted to that class or is to be
distributed among the individual
25 members of that class; or
(iii) if the appeal is not to be made for the
immediate direct benefit of one or more
people, a description of the thing or
cause for which the appeal is to be
30 made, and the means by which the
money or benefit will be applied to the
thing or cause;
(i) the form of the appeal;
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(j) the geographical area in which the appeal is
to be conducted;
(k) any other information required by the
Minister.
5 (3) A number of people who are not an
unincorporated organisation may combine to give
one notice in respect of an appeal.
(4) If a number of people combine to give one notice
under sub-section (3)--
10 (a) the notice must also contain the name and
address of each of them; and
(b) they are deemed to be an unincorporated
organisation.
19. Consent of intended beneficiaries also needed
15 (1) A notice of intention to conduct a fundraising
appeal must be accompanied by--
(a) the written consent to the appeal of each
intended beneficiary of the appeal; or
(b) a written explanation of why it is not
20 practicable to comply with paragraph (a).
(2) If the intended beneficiaries of an appeal are the
members of an organisation, the written consent
of a duly authorised representative of the
organisation is sufficient compliance with sub-
25 section (1)(a) with respect to the members of the
organisation.
(3) For the purposes of this section, a person who will
conduct or administer a proposed appeal is not a
beneficiary of the appeal unless the person is
30 listed under section 18(2)(h)(i) or falls within a
class described under section 18(2)(h)(ii).
20. Minister may approve or veto intended appeal
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(1) The Minister may, within 21 days after receiving
a notice of intention to conduct a fundraising
appeal under section 18--
(a) consent to the appeal; or
5 (b) direct that the appeal not be conducted; or
(c) direct that the appeal be conducted only on
the conditions that the Minister considers
necessary; or
(d) seek further information from the person
10 giving the notice.
(2) If the Minister seeks further information from a
person under sub-section (1)(d), the Minister may,
within 14 days of receiving the information, do
any of the things listed in sub-section (1).
15 (3) If the Minister seeks further information from a
person under sub-section (1)(d) or (2), the person
must not conduct the appeal in respect of which
the further information is sought at any time
before the day that is 14 days after the person
20 gives the information to the Minister.
Penalty: In the case of a corporation,
240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
25 21. Deemed consent if no response within 21 days
(1) The Minister is deemed to consent to the conduct
of a fundraising appeal by a person if--
(a) the person gave notice of the appeal under
section 18; and
30 (b) the Minister does not, within 21 days of
receiving that notice, give the person notice
of any action taken by the Minister under
section 20(1)(b), (c) or (d).
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(2) The Minister is also deemed to consent to the
conduct of a fundraising appeal by a person if--
(a) the person gave notice of the appeal under
section 18;
5 (b) the Minister seeks further information from
the person under section 20(1)(d); and
(c) the person gives the Minister the further
information sought by the Minister; and
(d) the Minister does not, within 14 days of
10 receiving that information, give the person
notice of any action taken by the Minister
under section 20(1)(b), (c) or (d).
22. Permit in cases of urgency
(1) A person may apply to the Minister for a permit to
15 conduct a fundraising appeal on, or starting on, a
day that is less than 28 days after the date of the
application.
(2) The application must be in the form required by
the Minister and must--
20 (a) contain the information listed in section
18(2); and
(b) state why it is necessary or desirable that the
appeal should be held or start on a date that
is less than 28 days from the date of the
25 application.
23. Grant of permits
On receiving an application under section 22, the
Minister may--
(a) refuse to grant the application; or
30 (b) grant the application and issue a permit to
the applicant either without conditions or
with any conditions that the Minister thinks
are appropriate; or
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(c) seek further information about the
application.
24. Person may apply for review of Minister's decision
(1) A person may apply to the Administrative
5 Appeals Tribunal for a review of a decision of the
Minister--
(a) to direct that an appeal that the person
wishes to conduct not be conducted;
(b) to impose conditions, or any particular
10 condition, on the conduct of such an appeal
under section 20(1)(c) or 23(b);
(c) to seek further information from the person;
(d) to refuse to grant a permit in response to an
application of the person under section 22.
15 (2) An application for a review must be made within
28 days after the day the person is given written
notice of the decision that the person wishes to
have reviewed.
Division 3--Conduct of Appeals
20 25. Appeals must be conducted in accordance with
conditions imposed and details given
(1) A person who is authorised to conduct a
fundraising appeal under section 19(1)(a) or (c),
20 or 22 must ensure that the appeal is conducted
25 in accordance with--
(a) any conditions specified by the Minister in
authorising the conduct of the appeal; and
(b) any details given to the Minister under
section 17 or 21 (unless a relevant detail no
30 longer applies as a result of a condition
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specified by the Minister or the Minister has
agreed in writing to the variation or omission
of the relevant detail).
Penalty: In the case of a corporation,
5 240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
(2) If the Minister has sought further information
under section 19, a reference to any details given
10 under section 17 is to be read as a reference to
those details as varied by the further information.
26. 12 month limit on certain appeals
(1) A person who is authorised to conduct a
fundraising appeal under section 19(1)(a), 20 or
15 22 must not continue to conduct that appeal for
more than 12 months after the day on which the
appeal starts.
Penalty: In the case of a corporation,
240 penalty units.
20 In any other case, 120 penalty units or
imprisonment for 12 months or both.
(2) Despite sub-section (1), a person may receive at
any time after the expiration of 12 months after
the day on which an appeal started any money or
25 benefit in respect of the appeal that was given in
response to anything that was done within
12 months of that day.
(3) Sub-section (1) does not apply if--
30 (a) in consenting to an appeal under section
19(1)(a) or (c), or in issuing a permit under
section 22, the Minister stated in writing that
sub-section (1) was not to apply to the
appeal; or
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(b) the Minister has consented in writing to the
extension of the appeal before the expiration
of 12 months after the day on which the
appeal started.
5 27. All appeal money must be banked
(1) This section applies if any money received in the
course of a fundraising appeal is not deposited in
an account held in the name of the sole intended
beneficiary of the appeal.
10 (2) A person who is conducting a fundraising appeal
must ensure that any money received in the course
of the appeal is deposited in an account--
(a) that is used exclusively for money received
in the course of fundraising appeals and that
15 is held at--
(i) a bank; or
(ii) a building society; or
(iii) a credit union; or
(iv) any institution that is in a class of
20 institution that is authorised for the
purposes of this section by the
regulations; and
(b) that has a name that indicates that it contains
fundraising appeal money; and
25
(c) from which it is only possible to withdraw
money by a cheque signed by at least
2 people.
Penalty: In the case of a corporation,
30 240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
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(3) If the money received in the course of a
fundraising appeal is deposited under sub-section
(2) in an account that is not used exclusively for
money received in the course of that appeal only,
5 the person who is conducting the appeal must
keep records in relation to the account that enable
the money to be readily identified as having been
received in the course of the appeal.
Penalty: In the case of a corporation,
10 240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
(4) The obligations on a person imposed by this
section are subject to any contrary obligations
15 imposed on the person by the Minister under
section 20 or 23.
Division 4--Accounts and Records to be kept
28. Purpose and scope of this Division
The purpose of this Division is to ensure that
20 adequate information is available to enable
inspectors and members of the public to check
that the proceeds of fundraising appeals have been
used for the purpose for which they were solicited
or received.
25
29. Fundraisers must keep certain records and accounts
(1) A person conducting a fundraising appeal must
keep records sufficient to enable a true and fair
view of the income and expenditure relating to the
30 appeal to be ascertained at any given time
including (without limiting this requirement)--
(a) full details of all funds and assets received as
a result of the appeal;
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(b) full details of what happened to all those
funds and assets;
(c) full details of--
(i) the amount applied to the purposes or
5 objects of the appeal and how it was
distributed;
(ii) any expenditure on assets;
(iii) any expenditure on wages, salaries,
commissions and other remuneration in
10 relation to the appeal;
(iv) any other administrative expenses
related to the appeal;
(v) any other expenditure related to the
appeal;
15 (d) any other details required by the regulations.
Penalty: In the case of a corporation,
240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
20 (2) If the appeal is or was conducted as part of a
national appeal, the person conducting the appeal
must ensure that the records show, in relation to
each requirement of this section, the amount that
was raised, spent or distributed in Victoria or that
25 otherwise relates to Victoria.
Penalty: 50 penalty units.
(3) The person conducting the appeal must ensure
that the records are kept in a way that enables
them to be conveniently and properly audited.
30 Penalty: 50 penalty units.
(4) The person conducting the appeal must ensure
that accounts containing a summary of the records
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required by sub-sections (1) and (2) are finalised
within 3 months of--
(a) the date the appeal ends, if the appeal runs
for 12 months or less; or
5 (b) each anniversary of the start of the appeal, if
the appeal runs for more than 12 months.
Penalty: 50 penalty units.
(5) If the appeal runs for more than 12 months--
(a) the accounts required by sub-section (4)(b)
10 are annual accounts; and
(b) once the appeal ends, the person conducting
the appeal must ensure that accounts
covering the period from the last anniversary
of the appeal until the date the appeal ends
15 are finalised within 3 months of the date the
appeal ends.
Penalty: 50 penalty units.
(6) For the purposes of this section, an appeal ends
one month after the last significant solicitation for
20 money or a benefit is made in relation to the
appeal.
(7) Records relating to any proceeds received after
the date an appeal ends but before the accounts for
25 the last period of the appeal are finalised must be
included in those accounts.
30. Other records that fundraisers must keep
(1) A person conducting a fundraising appeal must
keep all of the following records--
30 (a) if a corporation, incorporated association or
unincorporated organisation is authorised to
participate in the appeal, the name of the
person from that body who is responsible for
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overseeing the body's involvement in the
appeal;
(b) the name and address of each person who
participates in the appeal as a supervisor or
5 manager;
(c) the name and address of each person who
gained a financial advantage from the appeal
(other than as a person for whose benefit the
appeal was held or other than as a supplier of
10 goods or services) and details of the reason
for, and nature and amount of, that financial
advantage;
(d) the--
(i) name and address of every person; or
15 (ii) name or description of every class of
people--
on whose behalf the appeal was made;
(e) copies of the consents required by section
18(1)(a)(if any);
20 (f) the dates on which the appeal started and
finished;
(g) any other records required by the
regulations.
Penalty: In the case of a corporation,
25 240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
(2) The details required by sub-section (1)(c) must be
given in respect of any commercial fundraiser
30 involved in the appeal who gained a financial
advantage from the appeal, even if the commercial
fundraiser only supplied goods or services.
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31. Where and for how long records are to be stored
(1) A person conducting a fundraising appeal must
ensure that any records or accounts that the person
is required to keep under this Part are stored at all
5 times in Victoria at the address or the registered
office or principal place of business of the person
or of the designated person.
Penalty: 50 penalty units.
(2) The person must also ensure that the records or
10 accounts are stored at that place for 3 years after
the date the appeal ends.
Penalty: 50 penalty units.
Division 5--Audit of Accounts and Records
32. Minister may require accounts to be audited
15 (1) The Minister may direct a person who is
conducting, or has conducted, a fundraising
appeal to submit to the Minister, within the time
specified by the Minister, an auditor's report on
the accounts and records kept in relation to the
20 appeal.
(2) A person must comply with such a direction.
Penalty: 50 penalty units.
(3) The report must be prepared by--
(a) an auditor who is qualified to audit accounts
25 for the purposes of the Corporations Law; or
(b) a person approved by the Minister in writing
for the purposes of this section.
(4) The report must contain the auditor's opinion on--
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(a) whether the money received as a result of the
appeal has been properly accounted for and
applied; and
(b) whether the records and accounts in respect
5 of the appeal have been properly kept in
accordance with this Act; and
(c) whether the accounts show a true and fair
view of the income and expenditure relating
to the appeal.
10 (5) The Minister--
(a) may only issue a direction under sub-section
(1) within 3 years of the end of the appeal;
and
(b) must allow the person who is given the
15 direction a reasonable amount of time to
comply with the direction; and
(c) is not liable for any costs in relation to the
audit.
(6) If--
20 (a) the report of an auditor under this section
states that a person may have committed an
offence; and
(b) that person is prosecuted for the offence and
a court finds the person guilty of, or convicts
25 the person of, the offence--
the court may, on the application of the person
who paid for the auditor's report, order the
offender to pay to the applicant the cost of the
report.
30 (7) Sections 86(2), (3), (4), (5), (6) and (7) and 87 of
the Sentencing Act 1991 apply to sub-section (6)
as if a reference in those sections to an order made
under section 86(1) of that Act was a reference to
an order made under sub-section (6); and
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(8) A receipt for the payment of the costs of an
auditor's report that purports to be signed by, or on
behalf, of the person responsible for the audit is
evidence of the cost of the report.
5 Division 6--Public Inspection of Accounts and Records
33. Public may inspect some records
(1) Any person may inspect the accounts required by
sections 29(4) and (5) and the records required to
be kept by section 30 (other than the records
10 referred to in sections 30(b) and (c)).
(2) Any person may inspect any auditor's report
prepared under section 32 at any time after a copy
has been given to the Minister.
(3) Sub-section (2) applies even if the auditor's report
15 contains information that a person is not entitled
to inspect under sub-section (1).
(4) A person who is conducting, or has conducted, a
fundraising appeal must make any account or
record that a person is entitled to inspect under
20 this section available for inspection during normal
business hours within 5 days of receiving a
written request for the inspection from the person.
Penalty: 10 penalty units.
(5) The account or record must be made available for
25 inspection at the principal place of business in
Victoria of the person who is conducting, or who
conducted, the appeal, unless the person who
wishes to inspect the account or record agrees to a
different venue for the inspection.
30 (6) A person who is conducting, or has conducted, a
fundraising appeal must give to any person who
asks for it a written statement setting out--
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(a) the amount that has been received or pledged
in relation to the appeal to the date of the
request; and
(b) the amount received from each general
5 source of funds (for example, from
donations, sales and interest).
(7) The person who is conducting, or who conducted,
the appeal must comply with sub-section (6)
within 7 days of receiving--
10 (a) a written request for the statement from the
person; and
(b) the fee (if any) required by the regulations
for the purposes of this section.
Penalty: 10 penalty units.
15 _______________
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PART 4--POWERS OF THE COURT
Division 1--Jurisdiction of the Court under this Act
34. Court may order person to stop conducting an appeal
(1) The Court may order a person to stop conducting
5 a fundraising appeal and any associated activities,
or any activities relating to a proposed fundraising
appeal, if it is satisfied--
(a) that the person (or any person assisting in
conducting or administering the appeal or
10 proposed appeal) has failed, with respect to
the appeal or proposed appeal, to comply
with any provision of this Act or any
condition imposed by the Minister under this
Act; or
15 (b) that the appeal or proposed appeal is not
being, or will not be, conducted or
administered in good faith for the purposes
stated to those from whom money was, is
being, or will be, sought; or
20 (c) that the appeal or proposed appeal should be
stopped in the public interest.
(2) The Court may order a person to stop any
particular activity associated with a fundraising
appeal or a proposed fundraising appeal if it is
25 satisfied--
(a) that the activity does not comply with a
provision of this Act or a condition imposed
by the Minister under this Act; or
(b) that the activity should be stopped in the
30 public interest.
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(3) The Court may make an order, or revoke an order,
under this section on the application of the
Minister.
(4) In making an order, the Court--
5 (a) must specify the date on which the order is
to take effect; and
(b) may provide that the order is to lapse before
it takes effect if certain conditions set out in
it are met.
10 35. Court may make a temporary order without notice
(1) The Court may make a temporary order under
section 34 without giving the person against
whom the order is sought an opportunity to be
heard if it is satisfied--
15 (a) that there are reasonable grounds for
believing that the application under section
34 might be successful; and
(b) that having regard to all the relevant
circumstances, the public interest will be
20 best served by the making of the order.
(2) In making an order under this section the Court--
(a) must specify the date on which the order
expires; and
(b) must not specify an expiry date that is more
25 than 30 days after the date it makes the
order.
(3) The Court may extend an order made under this
section, but only if it has started to hear the
application under section 34 to which the order
30 relates.
(4) The Court may extend an order under sub-section
(3) until it gives its decision on the application.
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36. Court may make orders concerning wrongly obtained
assets
(1) This section applies if--
(a) assets are obtained as a result of a
5 fundraising appeal that was, or is being,
conducted or administered in contravention
of this Act; or
(b) assets that were obtained as a result of a
fundraising appeal were not, or are not
10 being, applied for the purposes stated to the
people from whom the assets were obtained.
(2) The Minister may apply to the Court for an order
in relation to the retrieval and disposal of the
assets.
15 (3) The Court may make any order concerning the
retrieval and disposal of the assets that it thinks is
appropriate having regard to the stated purpose of
the appeal.
(4) However, the Court may only make an order in
20 respect of an asset if it is satisfied--
(a) that sub-section (1) applies; and
(b) that the asset can be traced back (whether
directly or indirectly) to the assets that were
obtained as a result of the appeal; and
25 (c) in the case of an asset that is an object, that
the asset is not held by a person who
obtained it in good faith and for value.
(5) The Court may make any consequential order it
thinks is necessary to give effect to any order that
30 it makes under sub-section (3).
(6) Without intending to limit sub-section (5), the
Court--
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(a) may order that a specified asset is not to be
disposed of, or otherwise dealt with, by any
person except in the manner and
circumstances specified in the order; and
5 (b) if the Court considers that the circumstances
so require, may direct a specified trustee to
take control of the asset.
37. Minister may refer question to Court for answer
(1) At any time the Minister may refer to the Court
10 any question as to whether--
(a) a particular person in relation to a
fundraising appeal--
(i) is conducting (or administering or
participating in) or has conducted (or
15 administered or participated in) the
appeal; or
(ii) is or was exempt from the Act, or a part
of the Act; or
(iii) has provided accurate information in
20 any application, notice or statement
required by or under this Act; or
(iv) has in any other respect complied or
failed to comply with the provisions of
this Act;
25 (b) a fundraising appeal being, or to be,
conducted is or is not in the public interest.
(2) Any finding of fact, or of mixed fact and law, that
the Court makes in response to an application
under this section is admissible as evidence of the
30 relevant fact in any proceedings against a person
for an offence against this Act.
(3) Sub-section (2) does not apply to a finding that is
quashed, or that is substituted by another finding,
on appeal or review.
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(4) If a finding of fact, or of mixed fact and law, is
substituted by another finding on appeal or
review, sub-section (2) applies to the substituted
finding as if it had been made by the Court.
5 38. Form of reference
(1) A reference under section 37 must be in writing
and must be lodged with the registrar and must
state the question or matters to be determined by
the Court.
10 (2) The registrar must send a copy of the reference to
each party other than the Minister, and must
notify each party of the time and place fixed by
the registrar for the hearing of the reference.
Division 2--Procedure and Conduct of Matters under this
15 Part
39. Powers of Court
(1) Subject to this Part, the Magistrates' Court Act
1989 and the Rules made under that Act apply to
all applications and references by the Minister to
20 the Court under this Act.
(2) The Court in hearing an application, or dealing
with a reference, under this Act may do anything
that it may do in the exercise of its civil
jurisdiction.
25 40. Evidentiary provisions
(1) Despite anything to the contrary in the
Magistrates' Court Act 1989 and the Rules made
under that Act, evidence before the Court on the
hearing of an application or a reference may be
30 given in writing, or partly in writing, and may be
given by a statutory declaration.
(2) However, the Court must not receive evidence
from any person who is not available for cross-
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examination, unless each party to the hearing
consents to it doing so.
(3) Any consent given under sub-section (2) forms
part of the record of the Court.
5 41. Appearance of parties
Despite anything to the contrary in the
Magistrates' Court Act 1989 and the Rules made
under that Act, a party (including a corporation) to
an application or a reference may appear by any
10 other person authorised by that party.
42. Determination of Court
If the Court makes a determination, it must, unless
all parties to the matter otherwise agree, give to
each party to the matter within a reasonable time
15 of making the determination a statement in writing
of its reasons for the determination.
43. Effect of determination
If a determination made by the Court requires any
act or thing to be done by the Minister (other than
20 the payment of costs), the Minister must do the act
or thing within 5 working days of the day on
which the Minister receives a copy of the
determination.
_______________
25
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PART 5--ENFORCEMENT PROVISIONS
44. Minister may demand information
(1) The Minister may require a person to give her or
him any information or documents that the
5 Minister considers necessary to determine
whether that or any other person--
(a) has complied with a provision of this Act;
(b) is, or has been at any time, required by law
to comply with a provision of this Act;
10 (c) is or might be conducting or administering,
or has or might have conducted or
administered, a fundraising appeal;
(d) is, or was, exempt from the provisions of this
Act.
15 (2) The Minister must make the requirement in a
written notice that identifies the information or
document and that specifies--
(a) by when the requirement must be complied
with; and
20 (b) in what form the information or document is
to be given to the Minister.
(3) The notice must also state that the requirement is
made under this section and must include a copy
of this section and section 60.
25 (4) A person must comply with any requirement made
by the Minister under this section, unless the
person has a reasonable excuse for not doing so.
Penalty: In the case of a corporation,
240 penalty units.
30 In any other case, 120 penalty units or
imprisonment for 12 months or both.
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45. Appointment of inspectors
(1) The Secretary may authorise a person to carry out
inspections for the purposes of this Act.
(2) The Secretary must give each person authorised
5 under sub-section (1) an identity card--
(a) that states the person's name and the fact that
the person is authorised to carry out
inspections for the purposes of this Act; and
(b) that displays a photograph of the person.
10 46. Searches to monitor compliance with this Act
(1) In this section, "relevant premises" means any
premises--
(a) on or from which it appears a fundraising
appeal is being conducted or administered;
15 or
(b) that an inspector believes, on reasonable
grounds, contains any record or account that
is required to be kept by this Act, or any
document that indicates whether or not this
20 Act has been complied with.
(2) An inspector may enter any relevant premises at
any reasonable hour in the daytime and at any
time that the premises is open for business and
may--
25 (a) inspect the premises and any thing on the
premises;
(b) search for any evidence of any contravention
of this Act;
(c) make copies of, or take extracts from, any
30 document kept on the premises;
(d) seize any thing on the premises if the
inspector believes on reasonable grounds
that it is necessary to seize the thing in order
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to prevent its concealment, loss or
destruction;
(e) use any assistants the inspector considers
necessary to exercise the powers conferred
5 by this section.
(3) An inspector may exercise powers under this
section only to the extent that it is reasonably
necessary to do so for the purpose of determining
compliance with this Act.
10 (4) An inspector may not continue to exercise any
powers under this section if she or he fails to
produce, on request, her or his identity card for
inspection by the occupier of the land.
(5) An inspector may not, under this section, enter a
15 residence unless the occupier of the residence has
consented in writing to the entry and the carrying
out of a search.
47. Offence-related searches and seizures
(1) An inspector may only exercise powers under this
20 section if she or he has reasonable grounds for
suspecting that there is on any premises a
particular thing that may be evidence of the
commission of an offence under this Act.
(2) The inspector, with any assistants she or he
25 considers necessary, may with the consent in
writing of the occupier of the premises, enter the
premises and search for the thing without
applying for a search warrant.
(3) If the thing is found during a search under sub-
30 section (2), the inspector may--
(a) inspect any thing on the premises;
(b) inspect, and make copies of, or take extracts
from, the thing;
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(c) seize the thing if the inspector believes on
reasonable grounds that it is necessary to
seize it in order to prevent its concealment,
loss or destruction.
5 48. Occupier to be given copy of consent
(1) An occupier who consents in writing to the entry
and search of her or his premises or residence
under section 46 or 47 must be given a copy of the
signed consent immediately.
10 (2) If, in any proceeding, a written consent is not
produced to the court, it must be presumed, until
the contrary is proved, that the occupier did not
consent to the entry and search.
49. Search warrant
15 (1) An inspector may apply to a magistrate for the
issue of a search warrant in relation to particular
premises if the inspector believes on reasonable
grounds that there is, or may be within the next 72
hours, on the premises a particular thing that may
20 be evidence of the commission of an offence
under this Act.
(2) If a magistrate is satisfied that there are reasonable
grounds for suspecting that there is, or may be
within the next 72 hours, on the premises a
25 particular thing that may be evidence of the
commission of an offence under this Act, the
magistrate may issue a search warrant authorising
an inspector named in the warrant and any
assistants the inspector considers necessary--
30 (a) to enter the premises, or the part of premises,
named or described in the warrant; and
(b) to search for and seize any thing named or
described in the warrant.
(3) In addition to any other requirement, a search
35 warrant issued under this section must state--
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(a) the offence suspected; and
(b) the premises to be searched; and
(c) a description of the thing for which the
search is to be made; and
5 (d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
time or during stated hours; and
(f) a day, not later than 7 days after the issue of
10 the warrant, on which the warrant ceases to
have effect.
(4) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and must
be in the form set out in the regulations under that
15 Act.
(5) Subject to any provision to the contrary in this
Act, the rules to be observed with respect to
search warrants mentioned in the Magistrates'
Court Act 1989 extend and apply to warrants
20 under this section.
50. Announcement before entry
(1) Before executing a search warrant, the inspector
named in the warrant or a person assisting the
inspector must announce that she or he is
25 authorised by the warrant to enter the premises
and give any person at the premises an
opportunity to allow entry to the premises.
(2) The inspector or a person assisting the inspector
need not comply with sub-section (1) if she or he
30 believes on reasonable grounds that immediate
entry to the premises is required to ensure--
(a) the safety of any person; or
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(b) that the effective execution of the search
warrant is not frustrated.
51. Copy of warrant to be given to occupier
If the occupier or another person who apparently
5 represents the occupier is present at a premises
when a search warrant is being executed, the
inspector must--
(a) identify herself or himself to that person by
producing her or his identity card for
10 inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
52. Receipt must be given for any thing seized
(1) An inspector may not seize a thing, apparently in
15 the possession or custody of a person, unless she
or he makes out and tenders to the person a receipt
for the thing seized that--
(a) identifies the thing; and
(b) states the name of the inspector and the
20 reason why the thing is being seized.
(2) If an inspector is unable to discover the identity of
the owner or custodian of any thing seized, the
inspector must leave the receipt with, or post it to,
the owner of the premises from which the thing
25 was seized.
53. Copies of certain seized things to be given
(1) If an inspector seizes--
(a) a document; or
(b) a thing that can be readily copied; or
30 (c) a storage device the information in which
can be readily copied--
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the inspector must give a copy of the thing or
information to the owner or custodian of the
document, thing or device as soon as practicable
after the seizure.
5 (2) Sub-section (1) does not apply--
(a) to any document, thing or device moved
under section 54(2); or
(b) if the inspector is unable to discover the
identity of the owner or custodian of any
10 document, thing or device seized.
54. Use of equipment to examine or process things
(1) An inspector may bring on to a premises any
equipment reasonably necessary for the
examination or processing of things found at the
15 premises in order to determine whether they are
things that may be seized.
(2) If--
(a) it is not practicable to examine or process the
things at the premises; or
20 (b) the occupier of the premises consents in
writing--
the things may be moved to another place so that
the examination or processing can be carried out
in order to determine whether they are things that
25 may be seized.
(3) The inspector, or a person helping the inspector,
may operate equipment already at the premises to
carry out the examination or processing of a thing
found at the premises in order to determine
30 whether it is a thing that may be seized, if the
inspector or person helping believes on reasonable
grounds that--
(a) the equipment is suitable for the examination
or processing; and
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(b) the examination or processing can be carried
out without damage to the equipment or the
thing.
55. Use or seizure of electronic equipment at premises
5 (1) If--
(a) a thing found at a premises is or includes a
disk, tape or other device for the storage of
information; and
(b) equipment at the premises may be used with
10 the disk, tape or other storage device; and
(c) the inspector believes on reasonable grounds
that the information stored on the disk, tape
or other storage device is relevant to
determine whether this Act has been
15 contravened--
the inspector or a person assisting the inspector
may operate, or may require the occupier or an
employee of the occupier to operate, the
equipment to access the information.
20 (2) If the inspector or a person assisting the inspector
finds that a disk, tape or other storage device at
the premises contains information of the kind
referred to in sub-section (1)(c), she or he may--
(a) put the information in documentary form and
25 seize the documents so produced; or
(b) copy the information to another disk, tape or
other storage device and remove that storage
device from the premises; or
(c) if it is not practicable to put the information
30 in documentary form nor to copy the
information, seize the disk, tape or other
storage device and the equipment that
enables the information to be accessed.
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(3) An inspector or a person assisting an inspector
must not operate or seize equipment for the
purpose mentioned in this section unless the
inspector or person assisting believes on
5 reasonable grounds that the operation or seizure of
the equipment can be carried out without damage
to the equipment.
56. Compensation for damage caused during inspections
(1) The Minister must pay compensation for any
10 damage caused by an inspector, or a person
assisting an inspector, in exercising (or purporting
to exercise) any power conferred by this Act.
(2) However, the Minister is not liable to pay
compensation for any damage caused during any
15 inspection that reveals that there has been a
contravention of this Act.
(3) In determining the amount of compensation
payable in relation to any damage caused to
electronic equipment, regard is to be had to
20 whether the occupier of the premises and the
employees and agents of the occupier, if they were
available at the time, had provided any warning or
guidance as to the operation of the equipment that
was appropriate in the circumstances.
25 57. Return of seized things
(1) If an inspector seizes a thing under this Act, the
inspector must take reasonable steps to return the
thing to the person from whom it was seized if the
reason for its seizure no longer exists.
30 (2) If the thing has not been returned before the end
of the retention period, the inspector must take
reasonable steps to return it unless--
(a) proceedings have commenced within the
retention period and those proceedings
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(including any appeal) have not been
completed; or
(b) a court makes an order under section 58
extending the retention period.
5 58. Court may extend period
(1) An inspector may apply to the Court within the
retention period or within a period extended by
the Court under this section for an extension of
that period.
10 (2) The Court may order such an extension if satisfied
that retention of the thing is necessary--
(a) for the purposes of an investigation into
whether an offence has been committed; or
(b) to enable evidence of an offence to be
15 obtained for the purposes of a prosecution.
(3) The Court may adjourn an application to enable
notice of the application to be given to any person.
59. Power of inspector to require information or
documents
20 (1) An inspector who--
(a) exercises a power of entry under this Act;
and
(b) produces her or his identity card for
inspection by a person--
25 may, to the extent that it is reasonably necessary
to determine whether this Act has been
contravened, require the person to give
information to the inspector, to produce
documents to the inspector and to give reasonable
30 assistance to the inspector.
(2) A person must not refuse or fail, without
reasonable excuse, to comply with a requirement
made under sub-section (1).
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61
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Penalty: 200 penalty units.
(3) A person must not, in response to a request under
this Division--
(a) give information that the person knows to be
5 false or misleading in a material detail; or
(b) produce a document that the person knows to
be false or misleading in a material detail
without indicating the respect in which it is
false or misleading and, if practicable,
10 providing correct information.
Penalty: 300 penalty units.
60. Protection against self-incrimination
(1) A person is not excused from giving information,
producing a document or doing any other thing
15 that the person is required to do by or under this
Act on the ground that the information, the
production of the document or the doing of the
other thing would tend to incriminate the person.
(2) However, if a person claims, before giving any
20 information, producing any document or doing
any other thing, that the information, the
production of the document or the doing of the
other thing might tend to incriminate the person,
the information, document or evidence of the
25 doing of the thing is not admissible in evidence
against the person in criminal proceedings, other
than in proceedings in respect of the falsity of the
information.
61. Inspectors etc. must not disclose information
30 (1) A person must not disclose any information that is
obtained by her or him while exercising a power
conferred by this Act.
Penalty: 200 penalty units.
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(2) A person must not use any such information to
obtain directly or indirectly any pecuniary
advantage for herself or himself or for any other
person.
5 Penalty: 200 penalty units.
(3) However, a person may disclose or use such
information if--
(a) the disclosure or use is made in the
performance of a duty under, or in
10 connection with, this Act; or
(b) the person has the consent of the person to
whom the information relates; or
(c) the disclosure or use is made in legal
proceedings at the direction of a court; or
15 (d) the information is in the public domain at the
time it is disclosed or used.
(4) Sub-section (3) is not intended to interfere with
any rights another person may have with regard to
the disclosure or use of the information.
20 _______________
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PART 6--MISCELLANEOUS MATTERS
62. False statements
A person must not make any false statement or
give any false information in an application,
5 notice or other document provided under this Act.
Penalty: In the case of a corporation,
240 penalty units.
In any other case, 120 penalty units or
imprisonment for 12 months or both.
10 63. Role of designated person
In the case of a person who is an incorporated
association or an unincorporated organisation, for
the purposes of this Act--
(a) any requirement can be made of the
15 association or organisation; and
(b) any notice or other document can be given to
the association or organisation--
by making it of, or giving it to, the designated
person of the association or organisation.
20 64. Change of designated person
(1) An incorporated association or an unincorporated
organisation that has appointed a designated
person may replace that person with another
natural person.
25 (2) The replacement of a designated person takes
effect when the Minister is given written notice of
the name and address of the replacement.
(3) A person remains the designated person of an
association or organisation until--
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(a) the Minister is given a notice under sub-
section (2); or
(b) the person gives the Minister a written notice
of resignation signed by the person.
5 65. Presumption concerning the service of documents by
post
(1) If a document under this Act is sent by prepaid
post to an address, the document is to be
presumed for the purposes of this Act to have
10 been received at that address at the time at which
the document would have been delivered in the
ordinary course of post.
(2) Sub-section (1) does not apply if the relevant
court or tribunal is satisfied that the document was
15 not received at the address at that time on the
basis of evidence presented by, or on behalf of, a
person seeking to displace the presumption.
66. Continuing offences
(1) The Minister or an inspector may give a person a
20 notice--
(a) stating that in her or his opinion the person is
engaging in conduct that constitutes an
offence under this Act; and
(b) requesting the person to take specified action
25 to stop the offence from continuing; and
(c) specifying a date by when the specified
action must be taken.
(2) The notice must--
(a) specify the provisions in respect of which it
30 is issued; and
(b) contain a brief description of the grounds on
which it is based; and
(c) contain a copy of this section.
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(3) If the person fails to comply with a notice given
under this section, the person is guilty of an
offence for each day the offence in respect of
which the notice was given continues after the
5 date specified under sub-section (1)(c).
Penalty: One tenth of the penalty that applies in
respect of the offence for each day the
offence continues after the date
specified under sub-section (1)(c).
10 (4) Sub-section (3) does not apply if the offence in
respect of which the notice was given is not found
proven.
67. Extended time for prosecutions
Despite anything to the contrary in any Act, a
15 proceeding for an offence against this Act may be
commenced within 3 years after the date on which
the offence is alleged to have been committed.
68. Directors etc. of corporations etc. liable for certain
offences
20 (1) In this section--
(a) a reference to a corporation includes a
reference to an incorporated association; and
(b) a reference to an officer of a corporation is a
reference--
25 (i) in the case of an incorporated
association, to a member of the
controlling body of the association; and
(ii) in any other case, to the secretary, the
executive officer or a director of the
30 corporation.
(2) This section applies if--
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(a) an offence is committed against this Act by a
corporation; and
(b) the offence is proved to have been
committed at the instigation of, or with the
5 active consent or connivance of, or to have
been attributable to any wilful neglect on the
part of, an officer of the corporation.
(2) The officer is also guilty of the offence and is
liable to the penalty for that offence.
10 69. Delegation by Minister
The Minister may, in writing, delegate to any
officer or employee of the public service any of
the powers conferred on her or him by this Act,
other than this power of delegation.
15 70. Judicial notice concerning authorisations
All courts and people authorised by law or the
consent of parties to receive evidence must take
judicial notice of the signature of the Minister and
any delegate of the Minister on any document.
20 71. Regulations
(1) The Governor in Council may make regulations--
(a) prescribing the form of any notice,
application, permit, request, order, direction
or other form or instrument to be made or
25 given under this Act;
(b) exempting a person or a class of people from
having to comply with any or all of the
requirements of this Act and imposing
conditions in relation to such exemptions;
30 (c) prescribing labelling and record-keeping
requirements for clothing bins;
(d) requiring a person conducting a fundraising
appeal to which Part 3 applies to ensure that
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any record or account required by Part 3
complies with specified requirements or
standards;
(e) prescribing all matters that by this Act are
5 required or permitted to be prescribed or are
necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) The regulations--
(a) may be of general or limited application; and
10 (b) may differ according to differences in time,
place or circumstance; and
(c) may impose a penalty of up to 20 penalty
units for any breach of the regulations; and
(d) may confer a discretionary authority or
15 impose a duty on a person or a class of
people;
(e) may apply, adopt or incorporate any matter
contained in any document whether--
(i) wholly or partially or as amended by
20 the regulations; or
(ii) as in force at a particular time or as in
force from time to time.
(3) Regulations made under section 63(1)(c) may
impose requirements that override the general
25 requirements of this Act concerning labelling or
record-keeping.
72. Transitional provision
(1) Any consent, direction, permit, notice, request,
requirement or document given under the
30 Fundraising Appeals Act 1984 that--
(a) was in force immediately before this section
came into operation; and
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(b) that has an equivalent under this Act--
is deemed to have been given under this Act.
(2) Any fundraising appeal that was being conducted
in accordance with all applicable laws
5 immediately before the date this section came into
operation may continue to be conducted for 12
months after that date as if the Fundraising
Appeals Act 1984 had not been repealed and as if
this Act was not in force.
10 73. Repeal of former Act
(1) The Fundraising Appeals Act 1984 is repealed.
(2) In section 4(c) of the Second-Hand Dealers and
Pawnbrokers Act 1989, for "1984" substitute
"1998".
15
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
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