All incorporated not-for-profit organisations must by law have a constitution (also sometimes known as their rules, or articles of incorporation, or articles of association).

If you're an informal association of a few people sitting around a table, you don't have to have any rules at all. You can negotiate around each situation as it occurs. Most groups that last longer than a few meetings do find it useful to lay down some rules, just so that everybody knows what the boundaries are. And if the rules cause problems, you can change them at any time.

If you want to go a stage beyond that, you can make some of the rules harder to change - you can say that some changes have to be supported by a two-thirds majority, or have to be adopted after polling all the members. This means that people who join up can have some kind of certainty that the boundaries will stay where they are. You're deliberately restricting your flexibility. That's a constitution.

Model Rules

The basic form of the constitution of an incorporated not-for-profit organisation is generally drawn from the Model Rules attached as regulations to the Associations Incorporation Act in each state. Organisations may modify this basic format, but some elements are compulsory; in particular, if you do not make provision for certain things the law will read them into your constitution anyway - "Where in relation to any matter the model rules make provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association. "

If you're starting up a new organisation it's a good idea to make a few small changes to the model rules.

  1. Put in your objectives. Technically, you don't have to include your objectives or goals or mission in your constitution because you've already done that in the statement of objectives you lodged with the department when you were getting incorporated ("The objects of an incorporated association are the objects stated in the statement of objects that accompanied the application for its incorporation under this Act"). However, including them in the constitution as well makes it a lot easier for people to understand what you're on about.
  2. Put in criteria for membership. The model rules say that every new member has to be approved by the board (many small groups ignore or overlook this provision, but it's there). It doesn't, however, say what the board should take into account in making these decisions, and this can place the board in a difficult position in the very rare circumstance that they do actually want to keep somebody out. If you put in something unspecific like "Committed to the objectives of the organisation" this gives you some cover.
  3. Put in (if you want to) provision for voting by phone or email. The model rules don't cover the electronic age, and it's not at all clear what they allow and forbid. If you want to be absolutely certain, write in your preferred options.

That aside, you can make any amendments that aren't ruled out by the words of the Act, but most groups don't bother.

Amending your constitution

A good constitution should not get in the way of what you want to do. If your constitution is causing you difficulties, look at it and see if there are changes that would help. This will create a certain amount of work (the procedures for changing your constitution are of course set out in the constitution, and involve a general meeting) but it may be necessary.

The reality is that it is difficult for the founders of any organisation to be able to see 10, 20, or (in the case of Australia's founders at federation) 100 years down the track and create a constitution that allows both the stability and flexibility to deal with emerging challenges. Sometimes the constitution is found wanting and needs change.

It's also true, though, that if you think that the constitution is causing you extra work (hassles organising a quorum, advertising meetings, rotating board members, etc.) it's worth considering whether the problem may lie somewhere else.

It may be a case of a governance or administrative system that doesn't motivate people to attend, get the message out to the community, or build a pool of good new board members.

Accessing your constitution

The organisation should have copies of the constitution available to give to new members, board members, stakeholders, and anyone else who's interested. Sometimes organisations get prickly and defensive and start treating the constitution as if it's some kind of state secret. If this happens, go and ask the relevant department for the copy that the group lodged at incorporation.

Not all of your rules need to be in the constitution; in fact, only the essentials should be. You will probably want to set down other rules to govern other areas of your operations; adopt these as policies, or standing orders, or guidelines. These will be binding on the organisation while they are in operation, but are much easier to revise if you change your mind.

Remember, though, that you're bound by the law, and the constitution, and (for the moment) your own rules, and nothing else. Many people seem to think that all disputes can be settled by referring to the right rule, if only one could find the rulebook. This is not the case. There's no point in asking, for example, "What are the rules about ....." unless you've got something about that in your constitution or your rules or your policies. If you haven't, then there isn't a rule. Not everything has rules. Decide for yourself, individually or as a board, or leave it up to the chair.

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