Subpart 3—Constitution
25 Society must have constitution
Every society must have a constitution that complies with the requirements of this Act.
Contents of constitution
26 What constitution must contain
(1)
The constitution must contain the following matters:
(c)
how a person becomes a member of the society, including a requirement that a person must consent to be a member (see section 76); and
(d)
how a person ceases to be a member of the society; and
(e)
arrangements for keeping the society’s register of members up to date (see section 79); and
(f)
the composition, roles, functions, powers, and procedures of the committee of the society, including—
(i)
the number of members that must or may be on the committee (see section 45); and
(ii)
the election or appointment of officers; and
(iii)
the terms of office of the officers; and
(iv)
the functions and powers of the committee (see section 46); and
(vi)
how the chairperson (if any) will be elected or appointed and whether that person will have a casting vote if there is an equality of votes; and
(vii)
the quorum and procedure for committee meetings, including voting procedures; and
(g)
how the contact person or persons will be elected or appointed (see section 113); and
(h)
how the society will control and manage its finances; and
(i)
the method by which the constitution may be amended (see sections 30 and 31); and
(j)
procedures for resolving disputes, including providing for how a complaint may be made (see sections 38 to 44); and
(k)
arrangements and requirements for general meetings (see sections 84 to 93), including—
(i)
the intervals between annual general meetings; and
(ii)
the information that must be presented at general meetings; and
(iii)
when minutes are required to be kept; and
(iv)
the manner of calling general meetings; and
(v)
whether and, if so, how written resolutions may be passed in lieu of a general meeting for the purposes of section 89; and
(vi)
the time within which, and manner in which, notices of general meetings and notices of motion must be notified; and
(vii)
the quorum and procedure for general meetings, including voting procedures (for example, whether votes may be cast by post or by electronic means), procedures for proxies (if any), and whether the quorum takes into account members present by proxy or casting postal votes or votes by electronic means; and
(viii)
the arrangements and requirements for special general meetings under section 64(3) (unless that provision has been negated under section 67); and
(l)
the nomination of a not-for-profit entity, or a class or description of not-for-profit entities, to which any surplus assets of the society should be distributed on a liquidation of the society or on, or to enable, the removal of the society from the register (see section 5(3) and subpart 5 of Part 5).
(2)
Subsection (1)(j) does not limit a power to apply for an order, or take any other enforcement action, under Part 4.
(3)
Subsection (1)(l) does not apply to a racing club within the meaning of section 5(1) of the Racing Industry Act 2020.
Compare: 1908 No 212 s 6
27 Constitution must not give members rights or interests in society’s property
The constitution must not purport to confer on any member any right, title, or interest (legal or equitable) in the property of the society.
28 Bylaws, and tikanga, kawa, culture, or practice, and other matters
(1)
The constitution may contain any other matters that are not inconsistent with this Act or any other legislation, including providing for—
(a)
whether and, if so, how the society can make bylaws:
(b)
the society to express its tikanga, kawa, culture, or practice:
(c)
reasonable penalties to be imposed on any member (and for the consequences of the non-payment of any subscription or penalty):
(d)
any other matter relevant to the society’s operations or affairs.
(2)
A bylaw purportedly made by a society has no effect to the extent that it contravenes, or is inconsistent with, this Act, any other legislation, or the society’s constitution.
(3)
The making, amendment, revocation, or replacement of a bylaw is not an amendment of the society’s constitution.
Compare: 1922 No 27 s 3; 1953 No 80 s 4
Effect of constitution
29 Effect of constitution
(1)
The constitution of a society has no effect to the extent that it contravenes, or is inconsistent with, this Act or any other Act.
(2)
The constitution of a society is binding, in accordance with its terms, as between—
(a)
the society and each member; and
(3)
The constitution of a society is binding, in accordance with its terms, on each officer.
(4)
Subsections (2) and (3) are subject to the rest of this Act.
Compare: 1993 No 105 s 31
Amendments to constitution
30 Society may amend constitution
(1)
A society may amend its constitution in the manner provided by the constitution.
(2)
Every amendment to a society’s constitution must be—
(b)
approved at a general meeting of the society by a resolution passed by the relevant majority (or by a resolution passed in lieu of a meeting in accordance with section 89); and
(c)
otherwise made in accordance with its constitution.
(3)
A relevant majority is—
(a)
a simple majority of the votes of those members entitled to vote and voting on the question; or
(b)
if a higher majority is required by the constitution, that higher majority of the votes of those members entitled to vote and voting on the question.
Compare: 1908 No 212 s 21(1), (2)
31 Minor or technical amendments
(1)
A society may amend its constitution under this section if the amendment—
(a)
has no more than a minor effect; or
(b)
corrects errors or makes similar technical alterations.
(2)
The committee of the society must, in accordance with its constitution, ensure that written notice of the amendment is sent to every member of the society.
(3)
The notice must state—
(a)
the text of the amendment; and
(b)
the right of the member to object to the amendment.
(4)
If no objection from a member is received within 20 working days after the date on which the notice is sent (or any longer period specified in the society’s constitution), the committee of the society may make the amendment.
(5)
However, if such an objection is received, the society may not make the amendment under this section.
32 Amended constitution must continue to comply
A society’s constitution, as amended under section 30 or 31, must continue to comply with the requirements of this Act.
33 Society must give Registrar copy of amendment and amended constitution
(1)
A society must ensure that a copy of an amendment to its constitution and a copy of the constitution as amended are given to the Registrar within 25 working days after the amendment—
(2)
The copy of the amendment and the copy of the constitution as amended must be accompanied by the information prescribed by the regulations (if any), and a certificate from an officer certifying that—
(a)
the officer is authorised by the society to give the certificate; and
(b)
the amendment was made in accordance with section 30 or 31; and
(c)
the society’s constitution, as amended, will continue to comply with the requirements of this Act.
(3)
The certificate must include a brief description of the nature of the amendment.
(4)
If the copy of the amendment and the copy of the constitution as amended that are given to the Registrar are in conflict, the copy of the amendment prevails.
34 Registration of amendment
(1)
The Registrar must register an amendment given under section 33 if the Registrar is satisfied that—
(a)
the amendment was made in accordance with section 30 or 31; and
(b)
the society’s constitution, as amended, will continue to comply with the requirements of this Act.
(2)
The amendment takes effect from the date of registration.
(3)
Registration of the amendment is conclusive evidence that all requirements relating to the making, or registration, of the amendment were complied with.
Compare: 1908 No 212 s 21(3)
35 Court may amend constitution
(1)
A court may, on the application of a society or a member of a society, make an order amending the constitution of the society if it is satisfied of 1 or more of the following:
(a)
the constitution does not comply with the requirements of this Act:
(b)
an amendment to the constitution was not made in accordance with section 30 or 31:
(c)
it is not reasonably practicable for the society to amend the constitution itself using the procedure set out in its constitution:
(d)
the constitution is operating, or is likely to operate, in an oppressive, unfairly discriminatory, or unfairly prejudicial manner:
(e)
for any other reason, it is just and equitable to amend the constitution.
(2)
The Registrar must amend the constitution on the register after receiving a sealed copy of the order or on a later date specified in the order.
(3)
The amendment takes effect from the date on which the constitution on the register is amended.
Compare: 1908 No 212 s 21(3A)
36 Amendment where constitution is oppressive, unfairly discriminatory, or unfairly prejudicial
(1)
If a court makes an order under section 35 on the ground specified in section 35(1)(d), the constitution must not, to the extent that it has been amended by the court, again be amended without the leave of the court.
(2)
Subsection (1) does not apply if the court orders otherwise.
(3)
This section applies despite anything else in this Act.
37 Change of name cannot be made by amending constitution
The name of a society in its constitution may be amended only in accordance with sections 117 to 120.
Procedures in constitution for resolving disputes
38 Meanings of dispute and complaint
(1)
A disagreement or conflict is a dispute if—
(a)
it is between—
(ii)
1 or more members and the society; or
(iii)
1 or more members and 1 or more officers; or
(v)
1 or more officers and the society; or
(vi)
1 or more members or officers and the society; and
(b)
the disagreement or conflict relates to an allegation that—
(i)
a member or an officer has engaged in misconduct; or
(ii)
a member or an officer has breached, or is likely to breach, a duty under the society’s constitution or bylaws or this Act; or
(iii)
the society has breached, or is likely to breach, a duty under the society’s constitution or bylaws or this Act; or
(iv)
a member’s rights or interests as a member have been damaged or members’ rights or interests generally have been damaged.
(2)
A member, an officer, or a society makes a complaint if, in accordance with the society’s constitution,—
(a)
the member or officer starts a procedure for resolving a dispute in accordance with the constitution; or
(b)
the society starts a procedure for resolving a dispute in accordance with the constitution (for example, the society starts a disciplinary action against a member or an officer in relation to an allegation referred to in subsection (1)(b)(i) or (ii)).
(3)
In this section, a reference to—
(a)
a member is a reference to a member acting in their capacity as a member:
(b)
an officer is a reference to an officer acting in their capacity as an officer.
39 Procedures for resolving disputes must be consistent with natural justice
The procedures in a society’s constitution for resolving disputes must be consistent with the rules of natural justice.
40 Society may choose to include procedures in Schedule 2
A society may choose to include all or any of the procedures in clauses 2 to 8 of Schedule 2 in its constitution (but is not required to do so).
41 Safe harbour if Schedule 2 is used
(1)
The procedures in a society’s constitution for resolving disputes must be treated as being consistent with the rules of natural justice if those procedures consist of—
(b)
any additional procedures that are consistent with those procedures.
(2)
Subsection (1) does not prevent a society from having other procedures in its constitution for resolving disputes (as long as those procedures are consistent with the rules of natural justice).
42 Constitution may provide for types of dispute resolution
(1)
A society’s constitution may provide that all or certain kinds of disputes must or may be submitted to any type of dispute resolution, including—
(a)
consensual dispute resolution (for example, mediation, facilitation, or a tikanga-based practice); and
(b)
determinative dispute resolution (for example, arbitration under the Arbitration Act 1996 or adjudication).
(2)
This section and section 43 do not apply to the extent that other legislation requires a dispute to be dealt with in a different way (and the provisions of a constitution that relate to disputes have no effect to the extent that those provisions contravene, or are inconsistent with, that legislation).
Example
An incorporated society (T) is a trade union. Under section 161 of the Employment Relations Act 2000, the Employment Relations Authority has exclusive jurisdiction to make determinations about employment relationship problems generally, including matters about whether a person is entitled to be a member of the union and matters related to a failure by a union to comply with its rules.
T’s constitution must not provide for employment relationship problems to be dealt with by arbitration because that would be inconsistent with that section.
43 Provisions relating to arbitration
(1)
If a society’s constitution provides that a dispute must or may be submitted to arbitration under the Arbitration Act 1996, the relevant provisions of the constitution must be treated as an arbitration agreement that is binding on the society and the affected member or officer.
(2)
A society’s constitution may prescribe procedural matters (not inconsistent with the Arbitration Act 1996) that govern an arbitration under this section.
44 Constitution may provide for appeal or review
A society’s constitution may provide for whether and, if so, how a decision made under the procedures for resolving disputes may be subject to an appeal or a review.
Subpart 4—Committee and officers
Committee
45 Committee
(1)
Every society must have a committee.
(2)
The committee must comprise 3 or more officers who are qualified to be elected or appointed under section 47.
(3)
A majority of the officers on the committee must be made up of either or both of the following:
(b)
representatives of bodies corporate that are members of the society.
Example
A society (society A) has a committee of 5 officers.
Two of the officers are members of society A. One of the other officers represents another incorporated society (society B). Society B is a member of society A. Together these 3 officers are a majority on the committee.
The other 2 officers are independent officers.
(4)
Subsection (3) does not apply in the circumstances prescribed in the regulations.
46 Management of society
(1)
The operation and affairs of a society must be managed by, or under the direction or supervision of, its committee.
(2)
The committee has all the powers necessary for managing, and for directing and supervising the management of, the operation and affairs of the society.
(3)
This section is subject to any modifications, exceptions, or limitations contained in this Act or in the society’s constitution.
Compare: 1993 No 105 s 128
47 Qualifications of officers
(1)
Every officer of a society must be a natural person.
(2)
A natural person who is not disqualified by subsection (3) may be elected or appointed as an officer of the society, so long as that person—
(a)
has consented in writing to be an officer; and
(b)
certifies that they are not disqualified from being elected or appointed or otherwise holding office as an officer of the society.
(3)
The following persons are disqualified from being elected or appointed or otherwise holding office as an officer of a society:
(a)
a person who is under 16 years of age:
(b)
a person who is an undischarged bankrupt:
(d)
a person who is disqualified from being an officer of a charitable entity under section 31(4)(b) of the Charities Act 2005:
(e)
a person who has been convicted of any of the following, and has been sentenced for the offence, within the last 7 years:
(ii)
a crime involving dishonesty (within the meaning of section 2(1) of the Crimes Act 1961):
(iii)
an offence under section 143B of the Tax Administration Act 1994:
(v)
an offence, in a country, State, or territory other than New Zealand, that is substantially similar to an offence specified in subparagraphs (i) to (iv):
(vi)
a money laundering offence or an offence relating to the financing of terrorism, whether in New Zealand or elsewhere:
(f)
a person who is subject to any of the following orders:
(ii)
an order under section 108 of the Credit Contracts and Consumer Finance Act 2003:
(g)
a person who is subject to an order that is substantially similar to an order referred to in paragraph (f) under a law of a country, State, or territory outside New Zealand that is a country, State, or territory prescribed by the regulations:
(h)
in relation to any particular society, a person who does not comply with any qualifications for officers contained in the society’s constitution.
(4)
A natural person who is disqualified from being an officer but who acts as an officer is an officer for the purposes of a provision of this Act that imposes a duty or an obligation on an officer.
Compare: 1993 No 105 s 151
48 Registrar may waive disqualifying factors
(1)
The Registrar may, on an application made in the manner prescribed by the regulations (if any), waive the application of any of the disqualifying factors set out in section 47(3)(b) to (g) in relation to a particular person and a society.
(2)
If the Registrar waives the application of a disqualifying factor, the person to whom the waiver relates must not be treated as being disqualified from being an officer of the society because of that factor.
Example
The purposes of an incorporated society (A) include providing services to facilitate or promote the rehabilitation and reintegration of offenders who have been released from prison.
The Registrar considers that it may be useful for A’s committee to include a person who has been convicted of an offence specified in section 47(3)(e). The Registrar, accordingly, waives the disqualifying factor in that paragraph in relation to a particular person and A.
Compare: 2005 No 39 s 16(4), (5)
49 Other provisions relating to waivers
(1)
A waiver of a disqualifying factor may be granted on the terms or conditions that the Registrar thinks fit.
(2)
The Registrar may—
(a)
vary a waiver in the same way as a waiver may be granted:
(b)
revoke a waiver that has been granted.
Compare: 2005 No 39 s 16(6)–(8)
Officer ceasing to hold office
50 Officer ceasing to hold office
(1)
A person ceases to be an officer of a society if the person—
(a)
resigns in accordance with subsection (2); or
(b)
is removed from office in accordance with the society’s constitution; or
(c)
becomes disqualified from being an officer under section 47(3); or
(e)
otherwise vacates office in accordance with the society’s constitution.
(2)
An officer of a society may resign office—
(a)
in the manner provided in the constitution; or
(b)
if the constitution does not provide for a manner, by signing a written notice of resignation and giving it to the society.
(3)
The notice of resignation is effective when it is received by the society or at a later time specified in the notice.
Compare: 1993 No 105 s 157(1), (2)
51 Former officer remains liable for past acts, omissions, and decisions
(1)
Despite vacating office as an officer, a person who has held office as an officer remains liable under the provisions of this Act that impose liabilities on officers for acts and omissions and decisions made while that person was an officer.
(2)
See, however, the Limitation Act 2010, which provides defences to certain claims that are filed after an applicable period of time (for example, 6 years after the date of the act or omission on which the claim is based).
Compare: 1993 No 105 s 157(3)
Notice of election or appointment and of other changes
52 Notice of elections or appointments and of other changes relating to officers
(1)
The society must ensure that notice of the following is given to the Registrar:
(a)
an election or appointment of an officer:
(b)
a person ceasing to hold office as an officer:
(c)
a change in information relating to an officer that is prescribed by the regulations.
(2)
The notice must be given to the Registrar in the manner prescribed by the regulations (if any) within 20 working days after the society first becomes aware of the matter.
Validity of acts
53 Validity of officer’s acts
The acts of a person as an officer are valid even though—
(a)
the person’s election or appointment was defective; or
(b)
the person is not qualified for election or appointment.
Compare: 1993 No 105 s 158
Officers’ duties
54 Duty of officers to act in good faith and in best interests of society
(1)
An officer, when exercising powers or performing duties as an officer, must act in good faith and in what the officer believes to be the best interests of the society.
(2)
This section does not limit the power of an officer to make provision for the benefit of employees of the society in connection with the society ceasing to carry on the whole or part of its activities.
(3)
In subsection (2), employees includes former employees and the dependants of employees or former employees, but does not include an employee or a former employee who is or was an officer of the society.
Compare: 1993 No 105 ss 131, 132
55 Powers must be exercised for proper purpose
An officer must exercise a power as an officer for a proper purpose.
Compare: 1993 No 105 s 133
56 Officers must comply with Act and constitution
An officer must not act, or agree to the society acting, in a manner that contravenes this Act or the constitution of the society.
Compare: 1993 No 105 s 134
57 Officer’s duty of care
An officer, when exercising powers or performing duties as an officer, must exercise the care and diligence that a reasonable person with the same responsibilities would exercise in the same circumstances, taking into account, but without limitation,—
(a)
the nature of the society; and
(b)
the nature of the decision; and
(c)
the position of the officer and the nature of the responsibilities undertaken by them.
Compare: 1993 No 105 s 137
58 Duty relating to activities that create substantial risk of serious loss to creditors
An officer must not—
(a)
agree to the activities of the society being carried on in a manner likely to create a substantial risk of serious loss to the society’s creditors; or
(b)
cause or allow the activities of the society to be carried on in a manner likely to create a substantial risk of serious loss to the society’s creditors.
Compare: 1993 No 105 s 135
59 Duty in relation to obligations
An officer must not agree to the society incurring an obligation unless the officer believes at that time on reasonable grounds that the society will be able to perform the obligation when it is required to do so.
Compare: 1993 No 105 s 136
60 Use of information and advice
(1)
An officer, when exercising powers or performing duties as an officer, may rely on reports, statements, and financial data and other information prepared or supplied, and on professional or expert advice given, by any of the following persons:
(a)
an employee of the society whom the officer believes on reasonable grounds to be reliable and competent in relation to the matters concerned:
(b)
a professional adviser or expert in relation to matters that the officer believes on reasonable grounds to be within the person’s professional or expert competence:
(c)
any other officer or subcommittee of officers upon which the officer did not serve in relation to matters within the officer’s or subcommittee’s designated authority.
(2)
However, subsection (1) applies to an officer only if the officer—
(b)
makes proper inquiry where the need for inquiry is indicated by the circumstances; and
(c)
has no knowledge that the reliance is unwarranted.
Compare: 1993 No 105 s 138
61 Duties owed to society
Compare: 1993 No 105 s 169(3)
Conflict of interest disclosure rules
62 When officer has interest
(1)
An officer (A) is interested in a matter if A—
(a)
may obtain a financial benefit from the matter; or
(b)
is the spouse, civil union partner, de facto partner, child, parent, grandparent, grandchild, sibling, nephew, niece, uncle, aunt, or first cousin of a person who may obtain a financial benefit from the matter; or
(c)
may have a financial interest in a person to whom the matter relates; or
(d)
is a partner, director, officer, board member, or trustee of a person who may have a financial interest in a person to whom the matter relates; or
(e)
is interested in the matter because the society’s constitution so provides.
(2)
However, A is not interested in a matter—
(a)
merely because A receives an indemnity, insurance cover, remuneration, or other benefits authorised under this Act; or
(b)
if A’s interest is the same or substantially the same as the benefit or interest of all or most other members of the society due to the membership of those members; or
(c)
if A’s interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence A in carrying out A’s responsibilities under this Act or the society’s constitution; or
(d)
if A’s interest is of a kind that is specified in the society’s constitution for the purposes of this subsection.
(3)
Subsection (2)(d) applies only if the conditions prescribed by the regulations (if any) are satisfied.
(4)
In this section and sections 63 to 65, matter means—
(a)
a society’s performance of its activities or exercise of its powers; or
(b)
an arrangement, an agreement, or a contract (a transaction) made or entered into, or proposed to be entered into, by the society.
Compare: 2004 No 115 s 62
63 Duty to disclose interest
(1)
An officer who is interested in a matter relating to the society must disclose details of the nature and extent of the interest (including any monetary value of the interest if it can be quantified)—
(b)
in an interests register kept by the committee.
(2)
Disclosure under subsection (1) must be made as soon as practicable after the officer becomes aware that they are interested in the matter.
Compare: 2004 No 115 ss 63, 65
64 Consequences of being interested in matter
(1)
A member of the committee who is interested in a matter relating to a society—
(a)
must not vote or take part in a decision of the committee relating to the matter; and
(b)
must not sign any document relating to the entry into a transaction or the initiation of the matter; but
(c)
may take part in any discussion of the committee relating to the matter and be present at the time of the decision of the committee (unless the committee decides otherwise).
(2)
However,—
(a)
a member of the committee who is prevented from voting on a matter under subsection (1) may still be counted for the purpose of determining whether there is a quorum at any meeting at which the matter is considered; and
(b)
subsection (1)(a) or (b) does not apply to a member of the committee (A) in relation to a particular matter if all members of the committee who are not interested in the matter consent to A acting as referred to in that paragraph.
(3)
Despite subsection (2), if 50% or more of the members of the committee are prevented from voting on the matter under subsection (1), a special general meeting of the society must be called to consider and determine the matter.
Compare: 2004 No 115 s 66
65 Consequences of failing to disclose interest
(1)
The committee must, in the manner prescribed by the regulations (if any), notify the members of the society of a failure to comply with section 63 or 64, and of any transactions affected, as soon as practicable after becoming aware of the failure.
(2)
A failure to comply with section 63 or 64 does not affect the validity of an act or a matter.
(3)
However, subsection (2) does not limit the right of any person to apply for judicial review.
Compare: 2004 No 115 s 67
66 Regulations may provide for how members are notified
(1)
Regulations made for the purposes of section 65(1) may, but do not need to, require every member to be notified.
(2)
The regulations may instead require notification to be made to members as a group (for example, by way of a notice on an Internet site that is reasonably accessible to the members generally).
67 Constitution may negate, limit, or modify conflict of interest requirements
(1)
The constitution of a society may negate, limit, or modify any provisions of sections 63, 64, 65(1), and 73 if the conditions prescribed by the regulations (if any) are satisfied.
(2)
The constitution of a society may negate or limit the society’s ability to avoid a transaction under section 68(1) if the conditions prescribed by the regulations (if any) are satisfied.
68 Avoidance of transactions
(1)
A transaction entered into by the society in which an officer of the society is interested may be avoided by the society at any time before the expiry of 3 months after the transaction is notified under section 65(1).
(2)
However, a transaction cannot be avoided if the society receives fair value under it (see section 69).
(3)
A transaction in which an officer is interested can only be avoided on the ground of the officer’s interest in accordance with this section.
(4)
A provision of a constitution is of no effect to the extent that it purports to allow a transaction to be avoided in circumstances in which the transaction could not otherwise be avoided under this Act.
Compare: 1993 No 105 s 141(1), (2), (6)
69 What is fair value
(1)
For the purposes of section 68, whether a society receives fair value under a transaction is determined on the basis of the information known to the society and to the interested officer at the time the transaction is entered into.
(2)
If a transaction is entered into by the society in the ordinary course of its activities and on usual terms and conditions, the society is presumed to receive fair value under the transaction.
Compare: 1993 No 105 s 141(3), (4)
70 Onus of proving fair value
(1)
A person who is seeking to uphold a transaction and who knew or ought to have known of the officer’s interest at the time the transaction was entered into has the onus of establishing fair value.
(2)
In any other case, the society has the onus of establishing that it did not receive fair value.
Compare: 1993 No 105 s 141(5)
71 Effect on third parties
The avoidance of a transaction under section 68 does not affect the title or interest of a person to or in property that the person has acquired if the property was acquired—
(a)
from a person other than the society; and
(b)
for valuable consideration; and
(c)
without knowledge of the circumstances of the transaction under which the person referred to in paragraph (a) acquired the property from the society.
Compare: 1993 No 105 s 142
72 Application of provisions in case of certain payments, indemnities given, or insurance provided
Compare: 1993 No 105 s 143
73 Interests register
(1)
The committee must keep and maintain a register of disclosures made by officers under section 63 (an interests register).
(2)
An officer of the society may inspect the interests register at any reasonable time.
Subpart 5—Members
74 Society must have at least 10 members
(1)
A society must continue to have at least 10 members.
(2)
An act of a society or the transfer of property to or by a society is not invalid merely because the society does not have at least 10 members.
75 Registrar may act if society has fewer than 10 members
(1)
The Registrar may, if the Registrar is satisfied that a society has fewer than 10 members, give the society written notice—
(a)
requiring it to increase its membership in order to comply with section 74; and
(b)
informing it that, if the society does not comply with that section within 6 months after the date of the notice, the Registrar may—
(i)
apply to the High Court to put the society into liquidation; or
(ii)
remove the society from the register under subpart 1 of Part 5.
(2)
The Registrar may, if the society does not comply with section 74 at the end of the 6-month period after the date of the notice,—
76 Consent to become member
(1)
A person must consent to become a member of a society.
(2)
The consent of a body corporate (A) to become a member of a society may be given on A’s behalf in writing by a person acting under A’s express or implied authority.
77 Members have no right to property of society
Membership of a society does not confer on a member any right, title, or interest, either legal or equitable, in the property of the society.
Compare: 1908 No 212 s 14
78 Liability of members
(1)
A member is not liable for an obligation of a society by reason only of being a member.
(2)
The liability of a person to a society in their capacity as a member is limited to—
(a)
any amount unpaid on the membership of the member:
(b)
any liability as a member expressly provided for in the society’s constitution.
(3)
Nothing in this section affects the liability of a member of a society to the society under a contract, or for any tort, breach of a fiduciary duty, or other actionable wrong committed by the member.
Compare: 1993 No 105 s 97
79 Register of members
(1)
Every society must keep a register of its members.
(2)
The register must contain—
(a)
the name of each member; and
(b)
the last known contact details of each member; and
(c)
the date on which each person became a member; and
(d)
all other information prescribed by the regulations (if any).
(3)
Every society must update its register of members as soon as practicable after becoming aware of changes to the information recorded on the register.
Compare: 1908 No 212 s 22
Access to information for members
80 Information for members
(1)
A member may at any time make a written request to a society for information held by the society.
(2)
The request must specify the information sought in sufficient detail to enable it to be identified.
(3)
The society must, within a reasonable time after receiving a request,—
(a)
provide the information; or
(b)
agree to provide the information within a specified period; or
(c)
agree to provide the information within a specified period if the member pays a reasonable charge to the society (which must be specified and explained) to meet the cost of providing the information; or
(d)
refuse to provide the information, specifying the reasons for the refusal.
(4)
Nothing in this section or section 81 or 82 limits information privacy principle 6 set out in section 22 of the Privacy Act 2020.
Compare: 1993 No 105 s 178(1)–(3)
81 Grounds for refusing request
(1)
A society may refuse to provide the information if—
(a)
withholding the information is necessary to protect the privacy of natural persons, including that of deceased natural persons; or
(b)
the disclosure of the information would, or would be likely to, prejudice the commercial position of the society or of any of its members; or
(c)
the disclosure of the information would, or would be likely to, prejudice the commercial position of any other person, whether or not that person supplied the information to the society; or
(d)
the information is not relevant to the operation or affairs of the society; or
(e)
the request for the information is frivolous or vexatious.
(2)
Subsection (1) does not limit the reasons for which a society may refuse to provide the information.
(3)
However, the constitution of a society may negate subsection (2) (with the effect that the reasons for which a society may refuse to provide the information are limited to those in subsection (1)).
Compare: 1993 No 105 s 178(4)
82 Member may withdraw request if there is charge for information
If the society requires the member to pay a charge for the information, the member may withdraw the request, and must be treated as having done so unless, within 10 working days after receiving notification of the charge, the member informs the society—
(a)
that the member will pay the charge; or
(b)
that the member considers the charge to be unreasonable.
Compare: 1993 No 105 s 178(5)
83 Court orders relating to information
(1)
A court may, on the application of a member who has made a request for information under section 80, make an order under this section if it is satisfied that—
(a)
the period specified for providing the information is unreasonable; or
(b)
the charge set by the society is unreasonable; or
(c)
the society does not have sufficient reason to refuse to supply the information; or
(d)
the society has sufficient reason to refuse to supply the information but other reasons exist that outweigh the refusal.
(2)
The order is an order requiring the society to supply the information within the time or on payment of the charge that the court thinks fit.
(3)
The court may also specify in the order—
(a)
the use that may be made of the information; and
(b)
the persons to whom it may be disclosed.
(4)
The court may make an order for the payment of costs that it thinks fit.
Compare: 1993 No 105 s 178(6)–(9)
General meetings
84 Annual general meetings
(1)
Every society must call an annual general meeting of members to be held—
(a)
not later than 6 months after the balance date of the society; and
(b)
not later than 15 months after the previous annual general meeting.
(2)
However, a society does not have to hold its first annual general meeting in the calendar year of its incorporation but must hold that meeting within 18 months after its incorporation.
(3)
The society must—
(a)
hold the meeting on the date on which it is called to be held and in accordance with its constitution; and
(b)
ensure that minutes of the meeting are kept.
(4)
If a society is a union or is of a kind prescribed by the regulations, the society’s constitution may provide that a right to attend an annual general meeting applies only to delegates or other representatives of members (rather than to all members).
85 Irregularities in calling meeting
(1)
An irregularity in the manner of calling a general meeting of a society is waived if all the members entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity, or if all such members agree to the waiver.
(2)
An accidental omission to give notice of a meeting to, or a failure to receive notice of a meeting by, a member does not invalidate the proceedings at that meeting.
(3)
Subsection (2) is subject to the constitution of the society.
Compare: 1993 No 105 Schedule 1 cl 2(3), (3A)
86 Information to be presented at annual general meeting
(1)
The committee must, at each annual general meeting, present the following information:
(a)
an annual report on the operations and affairs of the society during the most recently completed accounting period:
(b)
the financial statements of the society for that period:
(c)
notice of the disclosures, or types of disclosures, made under section 63 (disclosure of interests) during that period (including a brief summary of the matters, or types of matters, to which those disclosures relate).
(2)
The annual report must contain the information prescribed by the regulations (if any).
(3)
In subsection (1)(c), matters has the same meaning as in section 62.
87 Methods of holding meetings
(1)
A general meeting of a society must be held by a quorum of persons—
(a)
being assembled together at the time and place appointed for the meeting; or
(b)
participating in the meeting by means of audio link, audiovisual link, or other electronic communication; or
(c)
by a combination of both of the methods described in paragraphs (a) and (b).
(2)
This section is subject to the society’s constitution.
(3)
See sections 26(1)(k) and 93, which provide for the constitution to deal with arrangements and requirements for general meetings (including the quorum, proxies, and voting by post or electronic means).
88 Right of access to financial statements and minutes of meeting
(1)
A member may, at any time, make a written request to the society for either or both of the following:
(a)
the financial statements of the society that were presented at the most recent annual general meeting of the society:
(b)
the minutes of the most recent general meeting of the society.
(2)
The society must, within a reasonable period after receiving the request and without charge, provide the requested information to the member.
Resolutions in lieu of meeting
89 Resolution in lieu of meeting
(2)
A written resolution is as valid for the purposes of this Act and the constitution as if it had been passed at a general meeting if it is approved by no less than 75% (or a higher percentage required by the constitution) of the number of members who are entitled to vote.
(3)
A written resolution under this section may consist of 1 or more documents in similar form (including letters, electronic mail, or other similar means of communication) each approved by or on behalf of 1 or more of the persons specified in subsection (2).
(4)
For the purposes of this section, a member may give their approval by—
(a)
signing the resolution; or
(b)
giving their approval to the resolution in any other manner permitted by the constitution (for example, by electronic means).
(5)
This section does not limit section 84 (which requires a society to call and hold an annual general meeting).
90 Proposed resolution in lieu must be sent to members entitled to vote
(1)
The society must ensure—
(a)
that a proposed resolution under section 89 is dated with the date on which the proposed resolution is first sent to a person entitled to vote for the purpose of approval (the circulation date); and
(b)
that the proposed resolution is sent to an address for each person who is entitled to vote; and
(c)
as far as is reasonably practicable, that the proposed resolution is sent under paragraph (b) on the circulation date; and
(d)
that a proposed resolution sent under paragraph (b) is accompanied by a statement of the effect of subsection (2).
(2)
A proposed resolution lapses if it is not passed under section 89 within 3 months (or any shorter period provided in the constitution) after the circulation date.
(3)
In this section and section 92, address, of a person (A), means—
(a)
the address (including an electronic address) specified by A for the relevant purpose; or
(b)
the actual or last known address (including an electronic address) for A, if—
(i)
paragraph (a) does not apply; or
(ii)
the society knows that the address referred to in paragraph (a) is not correct.
91 Accidental omission does not invalidate resolution in lieu
An accidental omission to send a proposed resolution or statement under section 90 to a person entitled to vote does not invalidate a resolution passed under section 89.
92 Society must send copy of passed resolution in lieu to certain members
The society must, within 5 working days after a resolution is passed under section 89, send a copy of the resolution to an address for each person who was entitled to vote who did not approve the resolution and on whose behalf the resolution was not approved.
Voting by proxy, postal voting, and voting by electronic means
93 Constitution may permit voting by proxy, post, and electronic means
(1)
This section applies if this Act requires or permits the members of a society to vote on a matter (for example, to approve a resolution to amend the society’s constitution under section 30).
(2)
The members may vote in 1 or more of the following ways if permitted by the society’s constitution:
(c)
cast a vote by electronic means.
(3)
See section 26(1)(k), which also provides for a constitution to set out procedures for voting in person at general meetings.
Subpart 7—Accounting records, financial reporting, and annual returns
Balance date
99 Balance date of charitable entities
The balance date of a society that is a charitable entity is the entity’s balance date under section 41(3) to (7) of the Charities Act 2005.
100 Balance date of other societies
(1)
The balance date of a society (other than a charitable entity) is the close of—
(a)
the date specified in the constitution as the society’s balance date; or
(b)
any other date that the committee adopts as the society’s balance date (if the balance date is not specified under paragraph (a)); or
(c)
31 March (if the balance date is not specified under paragraph (a) or (b)).
(2)
The following apply to a society (other than a charitable entity):
(a)
the society must have a balance date in each calendar year (subject to paragraphs (b) to (d)):
(b)
the society need not have a balance date in the calendar year in which it is incorporated if its first balance date is in the following calendar year and is not later than 15 months after the date of its incorporation:
(c)
the society may change its balance date without the approval of the Registrar if—
(i)
the period between any 2 balance dates does not exceed 15 months; and
(ii)
the society continues to have a balance date in each calendar year:
(d)
the society may change its balance date with the approval of the Registrar before the change is made (and the change may be approved with or without conditions).
(3)
If the balance date is specified in the society’s constitution, a change must be made in accordance with section 30 or 31 (without limiting subsection (2)(c) and (d)).
Accounting records
101 Accounting records must be kept
(1)
The committee must ensure that there are kept at all times accounting records that—
(a)
correctly record the transactions of the society; and
(b)
allow the society to produce financial statements that comply with the requirements of this Act; and
(c)
would enable the financial statements to be readily and properly audited (if required under any legislation or the society’s constitution).
(2)
The committee must establish and maintain a satisfactory system of control of the society’s accounting records.
(3)
The accounting records must be kept—
(a)
in written form in English or te reo Māori; or
(b)
in a form or manner that is easily accessible and convertible into written form in English or te reo Māori.
(4)
The accounting records must be kept for the current accounting period and for the last 7 completed accounting periods of the society.
Compare: 1993 No 105 s 194
Financial reporting
102 Annual financial statements must be prepared and registered
(1)
Every society must ensure that, within 6 months after the balance date of the society, financial statements are—
(a)
completed in relation to the society and that balance date; and
(b)
dated and signed by or on behalf of the society by 2 members of the committee.
(2)
The financial statements must be prepared in accordance with,—
(a)
in the case of a specified not-for-profit entity, generally accepted accounting practice; or
(b)
in the case of a small society, any of the following:
(i)
generally accepted accounting practice; or
(ii)
a non-GAAP standard that applies for the purposes of this section; or
(c)
in any other case, either of the following:
(i)
generally accepted accounting practice:
(ii)
a non-GAAP standard that applies for the purposes of this section.
(3)
Every society must ensure that, within 6 months after the balance date of the society, copies of the financial statements of the society for the period ending on that date are given to the Registrar for registration.
Compare: 1993 No 105 s 201
103 Definitions relating to financial reporting
(1)
In this subpart,—
applicable auditing and assurance standard has the same meaning as in section 5(1) of the Financial Reporting Act 2013
generally accepted accounting practice has the same meaning as in section 8 of the Financial Reporting Act 2013
non-GAAP standard has the same meaning as in section 5(1) of the Financial Reporting Act 2013
qualified auditor has the same meaning as in section 35 of the Financial Reporting Act 2013.
(2)
In this subpart, a society is, in respect of an accounting period,—
(a)
a specified not-for-profit entity if it is such an entity in respect of that period under section 46 of the Financial Reporting Act 2013:
(b)
a small society if,—
(i)
in each of the 2 preceding accounting periods of the society, the total operating payments of the society are less than $50,000; and
(ii)
as at the balance date of each of the 2 preceding accounting periods, the total current assets of the society are less than $50,000; and
(iii)
at the balance date of the accounting period, the society is not an entity described in section LD 3(2) of the Income Tax Act 2007 (a donee organisation).
(3)
Subsection (4) applies for the purposes of this subpart if—
(a)
a society is preparing financial statements for an accounting period (the relevant period); but
(b)
the society does not have 2 preceding accounting periods as referred to in subsection (2)(b).
Example
A society is preparing financial statements for an accounting period ending on 31 December 2026. The society was only incorporated in 2025. The society cannot apply the test as to whether it is a small society in subsection (2)(b) because it was not in existence for 2 accounting periods before the relevant period. Instead, it may apply the test in subsection (4).
(4)
The society is a small society in respect of the relevant period if,—
(a)
in the relevant period, the total operating payments of the society are less than $50,000; and
(b)
as at the balance date of the relevant period, the total current assets of the society are less than $50,000; and
(c)
at the balance date of the relevant period, the society is not an entity described in section LD 3(2) of the Income Tax Act 2007 (a donee organisation).
(5)
For the purposes of this section, total current assets has the meaning set out in the regulations.
104 Minimum requirements for financial statements of small societies
For the purposes of section 102(2)(b)(iii), the financial statements for an accounting period must—
(a)
contain the following information:
(i)
the income and expenditure, or receipts and payments, of the society during the accounting period; and
(ii)
the assets and liabilities of the society at the close of the accounting period; and
(iii)
all mortgages, charges, and other security interests of any description affecting any of the property of the society at the close of the accounting period; and
(b)
otherwise comply with requirements prescribed by the regulations.
105 Annual financial statements of certain societies must be audited
(1)
Every society that is of a kind prescribed by the regulations must ensure that the financial statements that are required to be prepared under section 102 are audited by a qualified auditor.
(2)
See sections 37 to 39 of the Financial Reporting Act 2013 (which provide for the appointment of a partnership and access to information).
(3)
An auditor must, in carrying out an audit for the purposes of this section, comply with all applicable auditing and assurance standards.
106 Auditor must report to members
(1)
The auditor of a society (if any) must make a report to the members on the financial statements audited by the auditor.
(2)
The auditor’s report must comply with the requirements of all applicable auditing and assurance standards.
Compare: 1993 No 105 s 207B
107 Auditor’s report must be sent to Registrar and External Reporting Board if requirements have not been complied with
If an auditor’s report indicates that the requirements of this Act have not been complied with, the auditor must, within 7 working days after signing the report, send a copy of the report and a copy of the financial statements to which it relates to the Registrar and the External Reporting Board.
Compare: 1993 No 105 s 207C
108 Duties do not apply if alternative financial reporting duties under financial markets or charities legislation
Sections 102 to 105 do not apply to a society in relation to an accounting period if—
(a)
financial statements for the society and that accounting period are required to be prepared under subpart 3 of Part 7 of the Financial Markets Conduct Act 2013; or
(b)
the society is a charitable entity and an annual return of the society under section 41 of the Charities Act 2005 is required to be accompanied by financial statements for the society and that accounting period.
Compare: 1993 No 105 s 197
Annual return
109 Annual returns
(1)
Every society must, in the manner prescribed by the regulations, ensure that an annual return is given to the Registrar for registration.
(2)
The annual return must contain the information prescribed by the regulations.
(3)
This section does not apply to a charitable entity.
Subpart 8—Other administration matters
Registered office
110 Registered office
(1)
Every society must always have a registered office in New Zealand.
(2)
The registered office of a society at any particular time is the place described as such in the register (subject to section 111).
Compare: 1908 No 212 s 18; 1993 No 105 s 186
111 Change of registered office
(1)
The committee of a society may change the registered office of the society at any time.
(2)
Subsection (1) is subject to the society’s constitution and to subsection (4).
(3)
The society must, in the manner prescribed by the regulations (if any), give notice to the Registrar of any change to its registered office.
(4)
A change to a society’s registered office takes effect on a date stated in the notice (being a date that is at least 5 working days after the notice is registered).
Compare: 1993 No 105 s 187
Contact person
112 Purpose
The purpose of sections 113 to 116 is to provide for every society to have a person whom the Registrar can contact when needed.
113 Society must have contact person
Every society must at all times have at least 1 contact person (and may have up to 3 contact persons).
114 Who contact person may be
(1)
A contact person must be—
(a)
at least 18 years of age; and
(b)
ordinarily resident in New Zealand.
(2)
The position of contact person may be held separately or in conjunction with any office in the society.
(3)
In this section, a person is ordinarily resident in New Zealand if the person—
(a)
is domiciled in New Zealand; or
(b)
is living in New Zealand and the place where that person usually lives is, and has been for the immediately preceding 12 months, in New Zealand, whether or not that person has on occasions been away from New Zealand during that period.
115 Vacancy in position of contact person
If there is a vacancy in the position of contact person and the society has no other contact person, the society does not breach section 113 if the position is filled within 20 working days after the vacancy occurs.
116 Notice of change of contact person
(1)
The society must ensure that notice of the following changes is given to the Registrar:
(a)
a change in a contact person of the society:
(b)
a change in the name or the contact details of a contact person of the society.
(2)
The notice must be given to the Registrar in the manner prescribed by the regulations (if any) within 20 working days after the society first becomes aware of the change.
Name of society
117 Change of name of society
(1)
An application to change the name of a society must be made by or on behalf of the society in the manner prescribed by the regulations.
(2)
As soon as the Registrar receives a properly completed application, the Registrar must—
(a)
enter the new name of the society on the register; and
(b)
issue a certificate of incorporation for the society recording the change of name of the society.
Compare: 1993 No 105 s 23
118 Registrar may refuse application if proposed name contrary to section 11
(1)
Despite section 117, the Registrar must refuse to register a change to a society’s name if the Registrar considers that any of paragraphs (a) to (f) of section 11(1) apply to the proposed new name.
(2)
If the Registrar refuses to register a change to a society’s name, the Registrar may register a change if the proposed new name is amended to address (to the Registrar’s satisfaction) the matter referred to in subsection (1).
119 Change of name if name is contrary to section 11
(1)
The Registrar may by written notice require the society to change its name under section 117 if the Registrar considers that any of paragraphs (a), (b), and (d) to (f) of section 11(1) apply to a society’s name.
(2)
The society must change its name within—
(a)
20 working days after the date on which the notice is served; or
(b)
any longer period specified in the notice.
(3)
If a society fails to comply with subsection (2),—
(a)
the Registrar may enter a new name on the register for the society (being a name selected by the Registrar that would be acceptable under section 11); and
(b)
issue a certificate of incorporation recording the change of name of the society.
Compare: 1908 No 212 s 11A; 1993 No 105 s 24
120 Effect of change of name
(1)
A change of name of a society—
(a)
takes effect from the date of the certificate issued under section 117 or 119; and
(b)
does not affect any rights or obligations of the society, or legal proceedings by or against the society, and legal proceedings that may have been continued or commenced against the society under its former name may be continued or commenced against it under its new name.
(2)
If a society’s name is changed, the constitution must be treated as containing the new name for the purposes of section 26(1)(a).
Compare: 1993 No 105 s 23(4)
121 Use of society name
(1)
A society must ensure that its name is clearly stated in every document issued or signed by, or on behalf of, the society that evidences or creates a legal obligation of the society.
(2)
If a document that evidences or creates a legal obligation of a society is issued or signed by or on behalf of the society and the name of the society is incorrectly stated in the document, every person who issued or signed the document is liable to the same extent as the society if the society fails to discharge the obligation unless—
(a)
the person who issued or signed the document proves that the person in whose favour the obligation was incurred was aware at the time the document was issued or signed that the obligation was incurred by the society; or
(b)
the court is satisfied that it would not be just and equitable for the person who issued or signed the document to be so liable.
(3)
A society that fails to comply with subsection (1) commits an offence and is liable on conviction to a fine not exceeding $5,000.
Compare: 1993 No 105 s 25
122 Society may use abbreviation
For the purposes of sections 121 and 123 (which relate to the manner in which a society may enter into contracts and other obligations), a society may use a generally recognised abbreviation of a word or words in its name if it is not misleading to do so.
Authority to bind society
123 Method of contracting
(1)
A contract or other enforceable obligation may be entered into by a society as follows:
(a)
an obligation that, if entered into by a natural person, would, by law, be required to be by deed may be entered into on behalf of the society in writing signed under the name of the society by—
(i)
2 or more officers of the society; or
(ii)
if the constitution of the society so provides, an officer, or other person or class of persons, whose signature or signatures must be witnessed; or
(iii)
1 or more attorneys appointed by the society under section 124:
(b)
an obligation that, if entered into by a natural person, is, by law, required to be in writing may be entered into on behalf of the society in writing by a person acting under the society’s express or implied authority:
(c)
an obligation that, if entered into by a natural person, is not, by law, required to be in writing may be entered into on behalf of the society in writing or orally by a person acting under the society’s express or implied authority.
(2)
A society may, in addition to complying with subsection (1), affix its common seal, if it has one, to the contract or document containing the enforceable obligation.
(3)
Subsection (1) applies to a contract or other obligation—
(a)
whether or not the contract or obligation was entered into in New Zealand; and
(b)
whether or not the law governing the contract or obligation is the law of New Zealand.
Compare: 1993 No 105 s 180
124 Attorneys
(1)
A society may, by an instrument signed under section 123(1)(a), appoint a person as its attorney either generally or in relation to a specified matter.
(2)
Subsection (1) is subject to the society’s constitution.
(3)
An act of the attorney under the instrument binds the society.
(4)
Sections 19 to 21 of the Property Law Act 2007 apply, with all necessary modifications, in relation to the power of attorney—
(a)
to the same extent as if the society were a natural person; and
(b)
as if a commencement of the liquidation of the society, or a removal of the society from the register, were an event revoking the power of attorney within the meaning of those sections.
Compare: 1993 No 105 s 181
Service of documents on society
125 Service of documents
(1)
A document in a legal proceeding may be served on a society in the manner prescribed by the regulations.
(2)
A document, other than a document in a legal proceeding, may be served on a society in the manner prescribed by the regulations.
(3)
A document that is served on a society must be treated as received by the society when specified by the regulations.
Te reo Māori
126 Use of te reo Māori in records and documents
Nothing in this Act prevents a society from—
(a)
having any of the following in te reo Māori:
(i)
the society’s constitution:
(ii)
the society’s bylaws (if any):
(iii)
any other document required by or for the purposes of this Act; or
(b)
keeping its records in te reo Māori.