New Incorporated Societies Act – Progress?

NOTE These notes, prepared by Mark von Dadelszen QSM, provide an overview of the more significant elements of the proposals to replace the Incorporated Societies Act 1908. This overview is a much abbreviated summary of the main proposals approved by cabinet in late June (Reform of the Incorporated Societies Act 1908). The Exposure Draft of the Incorporated Societies Bill released in November 2015 (see Incorporated Societies), largely followed the recommendations in the 2013 Law Commission Report 129 (see Incorporated Societies Act 1908 Report). We recommend that new and existing societies be proactive in anticipating the reforms when adopting or revising constitutions. The most recent advice we have is that a Bill may be introduced in 2019, and enacted in 2020. Incorporated Societies Act Reform The Minister of Commerce and Consumer Affairs hopes the reform Bill will be introduced to Parliament by the end of 2019. The following is a brief background to the reform: The Incorporated Societies Act 1908 has effectively remained unchanged for over a century (in 1920 it was amended to allow for branch societies, and on the introduction of decimal currency in 1967 a shilling fine was changed to 10 cents). In contrast, our companies’ legislation has been totally re-enacted six times since the Joint Stock Companies Act 1860 (1868, 1882, 1901, 1903, 1933 and 1993), all with regular amending Acts. The Law Commission’s 2013 Report 129, A New Act for Incorporated Societies, recommended a complete overhaul of the Incorporated Societies Act 1908. A 2015 Exposure Draft of the Incorporated Societies Bill largely followed the recommendations in the 2013 Law Commission Report. In a 26 June...

Record-Keeping for Not-for-Profit Organisations

Introduction Most not-for-profit organisations (societies and charitable trusts, abbreviated to N-f-P’s in these notes) are governed and managed by well-intentioned, honest people, but many of those people lack some or all of the knowledge and skills about the decision-making and record-keeping required in such an organisation. The sections that follow provide a brief guide to help get people started, but, first, some preliminary advice: What follows is only a brief overview of the essential requirements for good N-f-P record-keeping, and: It may be helpful if every incoming N-f-P Committee is provided with some basic training in governance, and An N-f-P may be well-advised to engage someone to provide such hands-on training or to advise the secretary and treasurer (or, possibly, to be responsible for some specific tasks). Where an N-f-P is incorporated under a statute (such as the Incorporated Societies Act 1908 or Charitable Trusts Act 1957) it gains the benefits of being an incorporated entity, and: The statute under which it is incorporated sets out general requirements for the entity’s governance, management and operations (as noted below, there may be some other statutes applicable to some of the organisation’s activities), It follows that those in charge of the entity need to be aware of and understand that legislation (noting that penalties may be imposed on people who fail to comply with the requirements in applicable Acts of Parliament), and There are annual reporting obligations (for instance to the Registrar of Incorporated Societies or to Charities Services), and Both the Registrar and Charities Services must be provided with details of a registered office (a physical address, not a P...
New Zealand Copyright for Musicians[1]

New Zealand Copyright for Musicians[1]

by Mark von Dadelszen, Consultant, Bannister & von Dadelszen, Solicitors, Hastings   What is copyright? Copyright is a property right that comes into existence automatically in respect of original qualifying works, and it applies to a wide range of items including toilet pan connectors, kiwifruit trays, clothing, and musical scores, with original literary and musical works being expressly listed as such qualifying works (Copyright Act 1994, section 14). Copyright is owned (with a small number of exceptions) by the creator or author of the work, or by anyone who has paid or agreed to pay for a commissioned work, and copyright ownership can be transferred and use of copyright work can be the subject of licences. The discussion that follows summarises the implications for musicians of most of these issues as well as infringement of copyright. Ownership of copyright gives the owner the exclusive right under section 16, Copyright Act 1994, to: Copy the work, To issue copies of the work to the public, To perform the work in public, To play the work in public, To show the work in public, To communicate the work to the public, To make an adaptation of the work, To do (a) to (f) above to an adaptation of the work, and To authorise another person to do any of the acts referred to in (a) to (h) above. Copyright does not exist indefinitely. Copyright only attaches to literary and musical works until 50 years from the end of the calendar year in which the author dies. If there is more than one author (such as composer of a musical score and...

When a Society can Find no Officers

A practical problem, and not uncommon We are quite frequently asked by members of incorporated societies for advice about a problem which is not uncommon – a society which is unable to find anyone willing to stand for office as chairperson, secretary or treasurer, and where the constitution does not outline what should be done in those circumstances (and few society constitution do so). Most society constitutions provide that these positions are to be filled by people elected from the membership and may provide for the co-option of people to fill vacancies. However, finding volunteers to stand for election or for co-opted appointment is often difficult, and few society constitutions provide any solution in the absence of volunteers willing to take office. In addition, of course, it is sometimes difficult even to find enough people to form the size of committee prescribed in a society constitution. If an incorporated society fails to comply with its constitution by failing to elect officers (or the number of people required to form its committee) as prescribed under the constitution then High Court proceedings could be commenced (at considerable expense) to try to find a remedy, and if the society is a charity the failure to comply with the constitution could be the subject of a complaint to Charities Services.   Is there a sensible answer to the problem? If a society is unable to elect or appoint enough officers or committee members as required by its constitution and the issue came before the High Court, the presiding judge is likely to look for a practical solution, particularly as ordering the society to...

GOVERNING CHARITABLE TRUSTS AND CHARITABLE SOCIETIES

Background This article has been prepared to help trustees of a charitable trust or committee members of a charitable society governing the charity more readily to understand the obligations they assume when appointed or elected. Because committee members of a charitable society are effectively “trustees” of the society they are referred to as “trustees” in the balance of this article. A trustee’s first obligation is to become familiar with: The trust instrument establishing the charity (such as the trust deed, or will, or the rules of the charitable society), generally referred to in these Notes as the charity’s constitution, which governs what can and cannot be done, especially the charity’s purposes, The charity’s property and records, Any limitations to which the charity is subject, The charity’s strategic plan and policies (which must always be consistent with the charity’s purposes), and then Never to forget the purposes and terms of the trust. It has been said that too many trustees accept appointment without fully understanding that being a trustee involves serious and onerous duties and a commitment of potentially significant time. Being a trustee may be a complex burden, involving not only an understanding of the trust but also being acquainted with relevant legal rules and principles. This article may help to redress those deficiencies, but it is of limited value for two reasons. First, this article is not specific to the circumstances of any particular charity and, second, the detail which may be found in text books cannot be included in such a relatively short article (rather more detailed notes are available to charities which are clients of Bannister...