Your club’s constitution is as important as people say. Sure, it covers vital things like your organisation’s name, why you exist (your objects) and how your leaders are elected, as well as how and when your meetings are to be held.
But the main reason your constitution is so important is because it sets out the rules under which you must operate to continue to enjoy the benefits of being an incorporated association. This is why the template constitution available in almost all states and territories in Australia is called the model rules! (If you’re interested, it’s only called the model constitution in NSW and the NT.)
Being incorporated is a common structure for clubs and associations because it establishes a legal entity that is separate from its members. This provides an element of legal protection for individual members, particularly those on the committee. The other main benefits of incorporation are:
The organisation will continue even after the committee members there now move on
Income tax exemption in most cases (subject also to other legislation)
Higher threshold for GST registration than for-profit businesses
Access to more grant programs and sponsorship
Heavily-subsidised access to leased buildings and facilities
The ability to own assets, enter into contracts, and hold bank accounts and insurance policies in the name of the association, not the individual members
So you can see why it’s important that you get your constitution right, and keep it up to date! In a previous article, we discussed why it’s a good idea to refresh your constitution regularly (The Benefits of Reviewing Your Constitution, May 2022). For new organisations, and for those that are small or have very simple operations, adopting the model rules of your state or territory is an easy way to make sure that your constitution is compliant with local legislation.
But what if your operations are more complex, or you’re looking for more sophisticated ways to treat things in your constitution, like how leaders are elected, having longer terms in office, or creating more detailed appeals processes? In these cases, you probably don’t want to adopt a do-it-yourself approach, preferring instead to outsource the writing of your new constitution to a professional.
However, once you start looking around, you may find it hard to find the best professional to write your constitution. Because finding the best club constitution writer is not something you do every day, what should you look for?
Here are 5 points that you can rely on as the most important criteria to use when choosing where to outsource your constitution.
It has to be your constitution
Even though you are planning on paying someone else to write it, your constitution still needs to take into account your operations and the idiosyncrasies of who you are as an organisation.
So when you’re looking for the best person to help write a new constitution, you want them to ask lots of questions. This is not the time for them to spend hours telling you how it should be!
Because it needs to capture your culture and personality, your constitution writer should seek your input all the way through.
You should be asked questions like, how do you want to structure your management committee? Do you want to call it a committee or a board? What benefits do you want to offer to your different classes of members? Do you want to offer proxy voting as an option? Do you have a patron? And who decides your fees?
2. A lawyer isn’t necessarily the best choice
When it comes to writing a constitution, there are a variety of options available. While engaging a lawyer can ensure your constitution is aligned with the law in your state or territory, it's important to keep in mind that lawyers may not always consider the specifics or idiosyncrasies of your organisation. This is a critical consideration that any constitution writer should take into account.
Many lawyers can do an excellent job, but it's important to find someone who will take the time to understand your organisation's unique needs and incorporate them into the constitution. Some lawyers may suggest that they prepare a draft constitution for you to review, without first having a detailed meeting with you to understand your requirements. It's best to look for a more collaborative approach.
It's worth considering that seeking a legal opinion later in the constitution review process can still be beneficial, regardless of whether you write your constitution yourself or engage a professional. However, it's important to ensure that any lawyer you engage is able to provide a tailored solution that meets your needs, rather than a ‘cookie-cutter’ outcome that doesn't fully align with your organisation.
3. You need to be involved, so you can learn
In putting together a new constitution, even though you won’t actually be writing it, you should be able to be involved at every step of the process, as it’s the best chance you’ll get to learn the foundations of a great constitution and how it keeps you incorporated.
The professional you choose to write your new constitution should still do all of the heavy lifting, including drafting the best wording for each clause and making sure it aligns with your local legislation. But a constitution review can be the best club governance training you go through, because it’s practical, in that it links directly to your organisation’s most important document, and it covers almost every topic that committee and board members should know about in their roles.
4. Your professional needs to focus on what’s important right now, to you
Every organisation is different, and different things are important to a club at different times in its growth. What matters most to you now, as you are considering putting together your new constitution? Is it the rights and obligations of each class of membership? Is it when in the year you hold your AGM, to fit in with important dates on your calendar, like big events or a sporting season? Is it how long your leaders should spend in office, or how you deal appropriately with conflicts of interest?
However you answer these questions, the important thing to remember when choosing a professional to help write your new constitution is that if you are dealing with pain points right now, your new constitution must deal with those things first.
5. Will they prompt you to review the constitution again when things change?
The only constant in the world of not-for-profit organisations seems to be that things keep changing! The world around us doesn’t sit still for long, and as a viable club or association, you need to be able to adapt.
For instance, what if you are considering applying for a liquor licence, as a way to create a new revenue stream? Or what if you broaden out your membership base by starting a junior arm of your club? These sorts of changes create wonderful opportunities, but did you know that they are also likely to trigger a need to change your constitution again?
It is strongly recommended that you conduct a detailed review of your constitution every three years. So when looking for the best professional constitution writing help, make sure that they will be able to support you on an ongoing basis into the future, and even be able to prompt you when it’s time to have another detailed look at your constitution.
There’s no time like the present
If you try to update your old constitution on your own, apart from missing opportunities to think outside the box that a professional can bring to your attention, you may accidentally create internal inconsistencies that can get you in trouble later on.
So while there’s no obligation for you to engage professional help to write a new constitution, the longer you leave things as they are, the longer it will be until you can capitalise on all the benefits that come with getting the best help to take you through the process of updating your constitution.
If you would like an obligation-free assessment of your current constitution to see if it is compliant with current legislation and governance best practice, you can upload a copy here, and we will be glad to assess your constitution at no cost. Or contact one of our consultants here to discuss a review of your constitution and governance documents today.
