An incorporated associations constitution

The constitution is a contract

Every incorporated association must have a constitution. The constitution of an incorporated association is a contract between the association and its members.

New and existing incorporated associations may:

• adopt the Model constitution
• adopt a modified version of the Model constitution as their own constitution
• adopt their own constitution.

The matters that must be included in the constitution

The constitution must address each of the following matters. They are referred to in Schedule 1 of the Associations Incorporation Act 2009 (the Act):

• membership qualifications: the requirements, if any, to become a member
• register of members: the register of the incorporated association’s members
• fees, subscriptions: for example, any entrance fees and subscriptions to be paid by the members
• members liabilities: a member's liability for the incorporated association's debts and liabilities, if any
• disciplining of members: the procedure, if any, for disciplining members. This includes an appeals process
• internal disputes: the procedure to resolve disputes between members and the incorporated association
• committee: the composition, functions, and processes of the committee, including:
  • the election or appointment of the committee members
  • the terms of office of the committee members
  • the maximum number of consecutive terms of office of any office-bearers on the committee
  • the circumstances in which a committee member has to vacate office
  • the filling of casual vacancies on the committee, and
  • the quorum (minimum number of members at a meeting) and procedures for committee meetings.
• calling of general meetings: the procedure for calling and holding a general meeting. It also covers the intervals between meetings
• notice of general meetings: the process for notifying members of a general meeting and motions
• procedure at general meetings: the quorum and rules for conducting a general meeting. Also, whether members can vote by proxy
• postal, electronic, or combined ballots: the types of resolutions that may be voted on by these ballots
• sources of funds: the sources of the incorporated association’s income
• management of funds: how to manage the incorporated association's funds. The procedure for drawing and signing cheques on its behalf
• custody of books: who is responsible for the incorporated association's books and documents, and its securities
• inspection of books etc: the procedures for the inspection of books and documents by members
• financial year: the incorporated association's financial year
• winding up: the winding up of the incorporated association.

An incorporated association representative must certify that the constitution complies with the Act's requirements. This includes when registering the incorporated association and when registering changes to the constitution

The Model constitution

The Model constitution covers all matters outlined in Schedule 1 of the Act, as well as a number of additional matters. 

Before adopting the Model constitution, each incorporated association must consider its suitability. 

Download the Model constitution

If an incorporated association's constitution does not address a matter in Schedule 1, the relevant provision of the Model constitution applies and forms part of the incorporated association's constitution.

However, this does not apply to incorporated associations registered before 1 July 2010. Their constitutions do not address the financial year end.

The Model constitution may be updated from time-to-time. The updates will automatically apply to the constitution of any incorporated association that has adopted the Model constitution, or if an incorporated association's constitution fails to address a Schedule 1 matter, the updated clause will form part of the constitution. 

A charity’s constitution  

If your incorporated association plans to register as a charity with the Australian Charities and Not-for-profits Commission (ACNC), your constitution must state its objects or purposes.

The Model constitution can be used as a base for an incorporated association's constitution, but a clause listing the incorporated association's objects and purpose must be added. 

Information about the ACNC's governing documents requirements is on the ACNC website.

Making changes to an incorporated association's constitution

NSW Fair Trading recommends that incorporated associations regularly review their constitution to ensure they are relevant and compliant.

An incorporated association may change its constitution by passing a special resolution. The change must be consistent with the Act and the rest of the constitution.

An incorporated association that adopted the Model constitution may want to change it. To do this, it must adopt a new constitution, including the changes, as its own.

The incorporated association must apply to register the changes within 28 days of the special resolution being passed. The application must: 

• be made on Form A6 Application to register change of objects or constitution with the prescribed fee
• include details of the proposed change
• include a copy of the special resolution as passed.

A change to the constitution is effective when registered with NSW Fair Trading.

See incorporated associations forms and fees for information on lodging the form. 

An application may be refused if it:

• does not comply with the Act
• is not in the approved form
• is lodged more than 28 days after passing the special resolution.

Where an incorporated association has made a number of changes over time, it is recommended that it pass a special resolution to adopt a constitution which consolidates the changes. 

An incorporated association representative must certify that the constitution complies with the Act.

See resolutions for more information.

If there is a breach of the constitution

 Breaches of the constitution are not the same as breaches of the Act.

In most cases, NSW Fair Trading cannot investigate or intervene in disputes over breaches of the constitution.

See resolving disputes for more information.