Opinion: Folau in a time of fix fundraising

Many column inches have now covered the Israel Folau saga and possibly like me you already are suffering from outrage fatigue.

The facts are well known that Folau was sacked due to a contractual dispute with his employer.

As Tim Soutphommasane eloquently pointed out “There is no crisis of free speech. Freedom of religion has not been suppressed. Political correctness has not gone mad”.

No freedom is absolute, including freedom of religion. Folau can say what he likes, but he cannot do so on our platform.

At mycause we understand but we also have a contract with all fundraisers. That contract is to abide by our terms and conditions and guidelines. Our guidelines protect our platform from discrimination, hate speech and bigotry among others.

Folau is free to choose his religious convictions over his contractual obligations and mycause is free to enforce our values over his campaign or others like it.

Similarly mycause has chosen to ban all fundraising for Fraser Anning supporters. Annings supporters in response chose to take mycause to the Queensland Anti Discrimination Tribunal stating that mycause discriminated against them on the basis of their political views.

Anning and his supporters are free to have their views. Our position is that they are just not free to espouse those views or raise money to support those views on our platform.

Being a private company mycause is afforded some leeway to protect our brand values. Mycause does not verify if a beneficiary is deserving of the funds raised, in either a financial or moral capacity. For example if an individual has cancer and appears to be financially comfortable we do not restrict that person from raising money. We don’t judge….as long as you stay inside the guidelines.

Sometimes however we use our discretion when a campaign is clearly not aligned with our brand values of inclusivity and where the campaign may encroach on the safe space we have created for people to fundraise for causes they care about.

Regulation and #fixfundraising

So where does the Folau case sit in terms of the current Australian regulatory environment? In the era of Justice Connect’s #fixfundraising – I can tell you it’s pretty broken.

What would happen if the campaign was found to be misleading, say he spent the money on a new house (although I understand he has a property portfolio already). Would there be a remedy? The short answer is NO…maybe.

GoFundMe is not registered to fundraise in NSW. As the company is a US company they are not subject to the Australian State based regulatory regime. Given the campaign was Australia wide the fundraiser should be registered in every State. Logically the fundraiser is the campaign creator, not the platform.

Currently Australian crowdfunding platforms are trying to fit the square peg of personal cause crowdfunding into the round hole of regulation, while operating at a competitive disadvantage.

But let’s face it, registering every fundraiser (campaign creator) in every state is obviously unworkable and non sensical.

Even if regulation were streamlined so all States are implementing the same regime, this cannot work in an era of no borders internet. Which State do you register in? Where your head office is located? What happens if that is San Francisco?

The only solution that makes any sense is to regulate (bad) behaviour. Rather than trying to regulate every campaign creator or every platform. This is where the Australian Consumer Law (ACL) comes in as an obvious solution. The ACL applies nationally and in all States and Territories, and to all Australian businesses. The ACL is administered by the ACCC and state and territory consumer protection agencies and is enforced by all Australian courts and tribunals, including the courts and tribunals of the States and Territories.

The ACL applies to certain activities of charities, other not-for-profit entities and fundraisers. Whether the ACL applies to a particular fundraising activity generally depends on whether that activity occurs in ‘trade or commerce’. If it does, then you should expect the ACL to apply to that activity. By updating the ACL to expressly include fundraising outside of trade & commerce, donors can rest easy that they will be protected from misleading, deceptive or unconscionable conduct. As the Folau campaign and others before, such as Trolley Man, the time to #fixfundraising is now.

The crowdfunding space operates on a “buyer beware” basis. No amount of fact checking, fraud checking and cross checking can save a donor from an accidental or practised fraudster.

The ACL was used in the Belle Gibson case because she had a product – the cookbook. There is no such product in the Folau campaign or generally in any other personal cause crowdfunding campaign.

Over to the ACNC

As has been reported widely, the Folau campaign is now being run and hosted by the Australian Christian Lobby (ACL). So effectively Folau is now fundraising for a charity (that will disburse funds to him). That charity should hold a fundraising license in the State in which the campaign is running to cover all its fundraisers. The charity is subject to the State based regulations. The charity is also regulated by the Australian Charity and Not for Profit Commission (ACNC). We trust the ACNC to hold the charity to account if they do not meet their charitable purpose. This will be extremely interesting to see if in fact the ACL is acting within their own objects.

So the moral is buyer beware of fundraisers requesting your hard earned money for their personal expenses.

Tania Burstin is the Founder and MD of My Cause. She is a three-time Telstra Business award finalist and Top 50 Women Fin Tech leader.

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