The Australian Consumer Law (ACL), which commenced in 2011, is the national law for fair trading and consumer protection.

Whilst people who generously support the fundraising efforts of charities and not-for-profits may not always view themselves as ‘consumers’, most would have a real interest in how the law promotes fairness and protection in their dealings with those organisations. 

As the law currently stands, there are many circumstances in which fundraising activities will be caught both by the ACL and by older State and Territory based fundraising legislation. 

Harmonising the laws that apply to charities and not-for-profit groups in their fundraising efforts is central to easing the red tape burdens (and therefore additional costs) that many groups in the sector face, especially when engaging with corporate partners to undertake specific fundraising campaigns. This would also eliminate much of the confusion that currently exists about which laws should be applied in this area.

On 31 March 2016, a formal review (Review) of the Australian Consumer Law  commenced with the launch of an Issues Paper that asked, among other things, whether the ACL should apply to charities and not-for-profit organisations. 

This Review is the first opportunity for reconsideration of the scope of the ACL in the five years since it was introduced.  Submissions have been made by many organisations with involvement in the not-for-profit sector. A final report based on the Review, and containing recommendations in support of improving the efficiency and effectiveness of the ACL, is expected by March 2017.

Prolegis has lodged a submission to this important Review.  Our submission noted that the issue of duplication between the ACL and State and Territory based laws could be addressed by including a new provision in the ACL to prohibit misleading or deceptive conduct in relation to fundraising activities.  Such a provision would go some way to nullifying and therefore supporting arguments in favour of the abolition of the similar (but nuanced) State and Territory based laws, in much the same way as the current prohibition in the ACL against misleading or deceptive conduct by corporations harmonised State and Territory based fair trading provisions.

You can read our submission to the Review here. 

If you have any questions regarding the Review, or about the application of the current provisions to your organisation and its fundraising activities, please contact us.

Mary Sheargold (Senior Associate) and Jon Cheung (Principal)