A trader is a person who undertakes a charitable fundraising appeal:
- in the course of their trade or business, or
- for their benefit.
There are a number of requirements that a trader must follow, including:
- provides a fair and reasonable return to the authority holder
- is held accountable by the proper maintenance of records
- provides accurate disclosure in any advertising.
There are instances where charities have been exploited by traders by lending their names to appeals in return for a nominal donation. Traders also have been known to deliberately absorb most of the gross proceeds of an appeal in direct costs which includes their commission or fee, leaving little, if any, net profit to the charity.
Notification of traders
Authority holders must notify NSW Fair Trading of any change to an existing trader, or if they are involved with a new trader. The details that must be provided include:
- if the trader is a person - their name, business and postal address and telephone and email contacts
- if the trader is an organisation, its full name (together with any registered business names), its business and postal addresses and its telephone and email contacts
- if the trader is an organisation, the full name of each director and owner of the business
- the period for which the trader is authorised to conduct the appeal according to the written agreement
- the type of appeal or appeals to be undertaken.
This information must be lodged with us in writing within 28 days of the engagement or the change occurring. Lodgements can be made by email at email@example.com or by mail addressed to:
NSW Fair Trading
Business Licensing Locked Bag 5138
Parramatta NSW 2124
Are consultants traders?
If a person or organisation is paid a fee to develop a fundraising event without a continuing partnership with the charity, the arrangement may be considered to be a consultancy and not a trader. Where a person or organisation is contracted to develop a fundraising event and to provide ongoing management of that event for a fee, then this person or organisation would be a trader.
Authority holders must make sure that a trader does not issue false or misleading advertising. Any advertising must include:
- the full name of the trader, the trader’s normal place of business, telephone number, website and email address
- details of the basis on which the benefit to be received by the authority holder is to be calculated or provided (cannot be expressed as a percentage of the net proceeds or as an amount of the net proceeds
- details of the benefit to be obtained by the trader
- the date on which the appeal will commence and the date it will end (should not be longer than 12 months).
The text of any advertising must receive prior approval from the authority holder.
A fair and reasonable return
The return from any appeal must be fair and reasonable and the authority holder must take all reasonable steps to make sure this occurs. The Lotteries and Art Unions Act 1901 requires that where fundraising lotteries and games of chance like raffles, charity housie, lucky envelopes, etc. are played, hey must achieve minimum returns (raffles 40 percent, art unions 30 percent, charity housie 12.5 percent). If the appeal involves ‘donation only’, the person or organisation must make sure that the total expenses payable do not exceed 50 percent of the gross proceeds. If it does exceed 50 percent, you must:
- review the expenditure incurred or to be incurred to avoid the shortfall
- write to us explaining the circumstances (e.g., a ‘donor acquisition’ scheme), and seek approval for a variation of the benchmark set by the authority condition
- where the spirit of the authority condition cannot be met, consider abandoning or terminating the type of appeal.
Trader's agreement elements
An agreement between an authority holder and a trader should include the following elements:
- The return to be obtained by the authority holder, or the method by which this will be calculated, and the manner in which payment will be affected
- Details of the commission or fee payable to the trader
- Details of the type, and any limitation on the amount, of expenses to be borne by both parties
- The rights, duties and responsibilities of both parties
- Insurance risks to be covered by each party
- Details of any records and documentation to be kept
- Details of the internal controls and safeguards to be employed to ensure proper accountability
- The process for resolving disputes between the parties, complaints from the public and grievances from employees
- Reporting requirements imposed on the trader
- An undertaking by the trader to comply with the provisions of the Charitable Fundraising Act 1991 and the conditions of the authority
- A mechanism to deal with the effect on the contract of any subsequent addition, variation or deletion of an existing condition of the authority
- The circumstances in which the contract is, or may be terminated.