Kiwiburn needs to update our existing constitution to bring it into compliance with the Incorporated Societies Act 2022. You can find a copy of the constitution here:
Kiwiburn Rules of Incorporation – Current.pdf
The legislation under which Kiwiburn Incorporated was formed had been passed in 1908. Over the years this legislation had become increasingly less relevant to the vast number of membership organisations in New Zealand. In 2011 the Law Commission began a review of the legislation and reported back to the government in 2013. A draft bill was introduced in 2015 and finally gained assent in 2022. All incorporated societies need to reregister before 5 April 2026. You can read the new Incorporated Societies Act 2022 in full here: https://www.legislation.govt.nz/act/public/2022/0012/latest/LMS100809.html
While this discussion concentrates on amendments we need to make to our constitution in order to reregister, this Act and other legislation regulates incorporated societies in other ways. Consequently we do not have to include every detail in the written constitution – the law binds us.
Section 26 of the Act (link here) is the key section that determines changes needed as it lists what the constitution must contain. Kiwiburn has evaluated the existing Constitution against the new legislation to determine what are the minimum changes required to effect reregistration under the new Act. Let’s work through the amendments needed.
The Name and Purpose of the Society
The first two are the name and purpose of the society. These are fully covered in our current constitution. The legislation requires that all societies must apply to the Registrar for approval of their name which must end with one of; Inc, Incorporated, or Manatōpū, and a change in name is one thing that cannot be changed by simply amending the Constitution. The approved legal name of our society is Kiwiburn Incorporated. Rule 2.0 of the constitution states that the Purpose of Kiwiburn Incorporated is to promote the 10 Principles of Burning Man and bring them together in the form of an annual festival
Members and Membership
The next items concern membership. They are: how a person becomes a member, a requirement that they consent to become a member, how they cease to be a member, and arrangements for keeping the register of members up to date. Rules 5.0 to 5.4 of the constitution covers this. Membership application occurs either when the prospective member purchases a ticket for Kiwiburn or approaches the society and pays a $15 membership fee. Where we have to make an amendment is to specify in the Constitution that by requesting to purchase a ticket or applying to join is how a person consents to become a member assuming their application is approved. Membership generally expires one year from membership starting and can be cancelled at any time by the member informing the committee in writing. Membership can also be revoked by a 75% vote by the committee. When members join they are required to give their name, address, telephone number, and email address to the Secretary for the purpose of maintaining the register of members. Members are responsible for updating these details by informing the Secretary of any changes.
The Committee
The next set of requirements cover the committee (“ExCom”). The first is how many members must be or may be on the committee. Currently we require that the committee have at least six members (Rule 3.3). The constitution also requires that members of the committee be appointed to the officer roles of Big Nob, Committee Wrangler, and Bean Counter. Equating to chairperson, secretary, and treasurer respectively.
Next we come to the election and appointment of committee members. Currently any member can nominate themselves to join the committee provided they are sponsored by a current committee member (Rule 3.3). Any committee position can be contested at any meeting (Rule 3.4). Furthermore the committee is reviewed at each AGM, effectively establishing an AGM to AGM term (Rule 6.1). The legislation does not require limits on the length of a term or that there be a limit on the maximum number of terms, but does require that if those do exist that they are contained in the Constitution.
The functions of the committee are detailed in Rule 4.0. Removal from the committee is spread across a number of Rules (3.4, 3.7, 6.1). How the Chairperson is elected and if they have a casting vote is under Rules 3.2, 6.4, and the quorum and procedures of committee meetings is covered by Rules 3.0 to 4.2, and 6.2.
One of the changes made by the legislation is that all members of the committee are Officers and that anyone not on the committee but who has a position which allows them significant influence over the management and administration of the society is to be regarded as an Officer.
Annual General Meeting
We do need to clarify some aspects of how AGMs are held. These include adding more specifics about when Minutes are to be kept, clarifying the time for the notification of the AGM and any motions to be voted on, voting procedures, and the arrangements of any Special General Meeting needed to address the situation where a majority of the Officers have a registered Conflict of Interest (note “Conflict of Interest” has a specific legal definition under the Act). These amendments will mainly consist of clarifying the existing Rules (6.0 to 6.8)
Contact Person
Two new sections of Rules will need to be included. The first is the appointment of a person or persons (maximum of 3) whom the Incorporated Societies Registrar can contact if necessary. We recommend that this be assigned to the Secretary, Treasurer, and Chair.
Dispute Resolution Procedures
The second is more important and is the addition of dispute resolution procedures. The disputes in question are whether the society, an officer, or a member has engaged in misconduct, breached a duty under the constitution, bylaws, or act, or if a member’s rights or interests as a member have been damaged. Schedule 2 of the legislation includes a set of procedures which ensure that the principle of natural justice is achieved. Specifically:
- how the complaint is made,
- the person who makes the complaint has a right to be heard
- the person subject to the complaint has the right to be heard
- how the complaint is investigated and determined
- that the society may decide not to proceed with the complaint
- that the society may refer the complaint to an external person
- that a person may not be a decision maker if the investigating committee determines that they are not impartial.
We recommend that our Society fully incorporates Schedule 2 of the new Act, which encompasses these recommendations, into the revised Constitution.
Finance and Constitutional Amendments
Other requirements that we already meet are how the society will manage its finances (Rules 7.0 to 7.4), the nomination of recipients for assets if the society were to be liquidated (Rule 9.0), and how the Constitution can be amended (Rules 10.0 & 10.1).
Next Steps
Before any amendments to our Constitution for reregistration are recommended to a General Meeting for members to approve we will seek community input before drafting the proposed amendments and then share them with the community to allow feedback. Only then will the final amended Constitution be tabled at a Special General Meeting to be voted on by the membership.
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Image Credit: Max Volk
