The Rules of an incorporated sporting Association form the structure within which the sport club operates.
The Rules include the Constitution, Regulations and By-laws, if any, of the association or club.
Under the the Act, an association or club may:
If your club is to become incorporated or, if already incorporated, and you wish to update your existing constitution you may wish to consider adopting one of the three Model Sport Constitution templates have been designed specifically State Sporting Organisations (SSO) and Regional Sporting Associations (RSA) and community clubs which can be downloaded.
The templates take into account issues which State Sporting Organisations (SSO), Regional Sporting Associations (RSA) and community clubs need to deal with. For example, sport must deal with the impact of drugs; sport may be affected by child protection legislation; and sport operates under a national system where the national body can make rulings and set policy that will flow through the sport and affect those playing at club level.
The templates assumes that your sporting organisation will either be directly affiliated with the state body for that particular sport, or that the club will participate within a zone or district sport association, which is affiliated with the state body.
The templates assist all levels of the sport to work together and therefore share common purposes, structures, policies and procedures. It also makes it easy to address issues of joint concern, to share information and to maximise the sport’s marketability. The template structure enables clubs to enact consistent and complementary policies and strategies that address areas of common risk and that flow effectively through the organisation.
The templates address changes to the Act and are consistent with the Australian Sports Commission’s ‘Governance Principles: A Good Practice Guide’.
To enable ease of use, the templates contain extensive footnotes and explanations on clauses and highlights sections that can be varied to suit your local situation.
Following the development of your Constitution, you will also develop a set of Regulations that provide more detail on sections of the Constitution.
Regulations (sometimes called Rules or By-laws) are more easily adjusted and have a more operational tone to them. This is where you can include more detail of the policies and procedures that underpin the Constitution.
Within the templates, there will be references to sections that would be detailed in the Regulations developed to accompany your Constitution. These are marked by ®.
You should also check whether your club has obligations under its affiliation with your state body that may need to be taken into consideration in the development of the Constitution (e.g. obligatory inclusions).
Sections where you need to insert specific information are marked [Sport] and highlighted in red. The gold comments/discussion boxes will need to be deleted from your final version.
As with any legal document, the templates do not replace obtaining legal advice on your specific requirements.
The Constitution of the Association will determine the membership of the Board or Committee.
If the incorporated association has adopted the model rules, the board or committee will consist of the President, the Vice President, the Treasurer, the Secretary plus three ordinary members.
Alternatively, sporting Associations may consider the Model Sport Constitution templates designed specifically for State Sporting Organisations, Regional Sporting Associations and community sport clubs.
The numbers on the Board will vary. The template has seven elected directors and up to two ‘external’ appointed Directors who may be appointed by the elected Directors.
The Club needs to ensure it has a Board size and composition that meets its needs e.g. Directors are elected or appointed based on skill, abilities and experiences.
The templates allow for flexibility and a Board or Committee Member can hold more than one position.
An incorporated Association is required to have a Public Officer who has attained the age of 18 years and is a resident of New South Wales (section 23).
The Public Officer is the link between the sporting club and the regulator of the Act, the Commissioner of the Office of Fair Trading. The Public Officer is the conduit for information flow between the Association and the regulator, therefore it is important that the Public Officer is an Office Bearer (Director) and informed about the Association's activities. Further, as the Public Officer has numerous responsibilities, it is important that they are an Office Bearer and therefore owe a duty to act in the best interests of the Association.
The Public Officer’s address may be used as an official address for the service of documents on the Association. To this end, the Public Officer is required to bring all documents received by him or her to the attention of the committee as soon as practicable (section 63).
Public Officers of sporting Associations need to be aware that failure to comply with their obligations under the Act may lead to prosecution, or in some instances, cancellation of the incorporation of the Association.
Incorporated associations can be involuntarily cancelled if the NSW Office of Fair Trading does not receive returns for more than 3 years and/or contact details of the Public Officer are not updated.
The Act does not set out specific qualifications for persons who can become a Committee Member. Under the Act, any member can be elected as a Committee Member, provided he or she is not a bankrupt or mentally incapacitated.
An Association's Constitution may also set out additional qualifications for membership of the Committee.
There is no prohibition in the Legislation on an employee being a member of a Committee. However, the Constitution of many Associations restrict the number of employees who may be on the Committee.
In addition, an Association that holds a Fundraising Authority under the Charitable Fundraising Act 1991 should contact the Office of Charities if they wish to enable employees to serve on the Committee.
The Act does not prohibit persons under the age of 18 (minors) becoming a member of the Board or Committee. However, care should be taken in this regard as questions about the legal capacity of minors can be complex.
An Association that wishes to allow persons under the age of 18 years of age to be members of the Committee should obtain its own legal advice in relation to this issue.
There is no prohibition in the Act on the payment of Board or Committee Members, provided that the payment is a bona fide payment of remuneration.
However, if it is intended that Committee Members be paid, it is advisable to provide for this in the Constitution of the Association, to avoid potential disputes regarding this issue. In addition, members of the Committee should obtain its own legal advice in relation to this issue.
Australian Sports Commission: Governance Principles A Best Practice Guide
These guidelines have been modified to make them more relevant to sporting organisation operating within New South Wales.
Under each heading the original commentary and guidance has not been changed, however an additional commentary section has been added with New South Wales perspectives related to each principle and to guide sporting organisations in implementing these principles
Fact Sheet: Changes to the Associations Incorporation Legislation
The changes will help associations including sporting clubs and association run more effectively.
It is anticipated that the new Associations Incorporation Act 2009 will come into effect in late 2009.
The Act is administered by the NSW Office of Fair Trading (Department of Commerce). For further information about the changes to the Act go to the NSW Office of Fair Trading web site (www. fairtrading.nsw.gov.au).