Existing Incorporated Societies – Transitional provisions before re-registration under the Incorporated Societies Act 2022

Introduction – the re-registration process

Societies incorporated under the Incorporated Societies Act 1908 need to decide whether to re-register under the new Act before 1 December 2025, or whether to become unincorporated (which this author considers is, generally, not a wise decision), while societies incorporated under the Charitable Trusts Act 1957 may choose to remain as they are under the 1957 statute (the requirements of which are not as onerous as those under the Incorporated Societies Act 2022) or may choose to re-register under the 2022 statute. The Registrar’s website sets out a great deal of useful information about the re-registration process, and also a society constitution-builder.

After the Incorporated Societies Act 2022 was enacted it was approximately a year before Regulations made under the new Act. After the Regulations were made in October 2023 this author resumed the text-revision process to have the 4th Editions of his books, Law of Societies and Members’ Meetings published by LexisNexis. At the time of writing this article that process is well-advanced and both books should be available before the end of 2024.

Committee membership of existing Incorporated Societies before re-registration

Section 45 of the Incorporated Societies Act 2022 provides as follows:

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:
(a) members of the society:
(b) representatives of bodies corporate that are members of the society.
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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.
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(4) Subsection (3) does not apply in the circumstances prescribed in the regulations.

 

The effect of s.43(3) has been modified for the transitional period for re-registration of existing societies under the new statute (the period until 1 December 2025) by Regulation 6, Incorporated Societies Regulations 2023, which alters the impact of s. 45(3) for those societies proposing to re-register; providing as follows:

6 Majority of committee may be made up of non-members during transitional period
(1) Section 45(3) of the Act does not apply to a society during the transitional period if—
(a) the society gives notice to the Registrar that the society will not comply with section 45(3)—
(i) on an Internet site maintained by or on behalf of the Registrar for that purpose; or
(ii) if the Registrar is satisfied that it is not reasonably practicable for the society to comply with subparagraph (i), in another manner determined by the Registrar; and
(b) either—
(i) the proposed constitution provided as part of the application for incorporation or reregistration (as applicable) expressly provides for the majority of the committee to be made up of officers who are not members or representatives of bodies corporate that are members; or
(ii) a copy of an amendment to the constitution and a copy of the amended constitution given to the Registrar under section 33 of the Act expressly provide for that.
(2) Subclause (1) applies to a society if, and for as long as, the society’s constitution continues to include the provision referred to in subclause (1)(b)(i).
(3) Sections 28 and 29 of the Act do not apply to the extent that they would prevent a society from relying on this regulation.

Those wishing to avail themselves of Regulation 6 would be well-advised to communicate with the Registrar’s office to ensure that they comply with the requirements in that Regulation (there being no guidance relating to Regulation 6 on the Registrar’s website when this article was written).

Restricting attendance at General Meetings of Existing Incorporated Societies before re-registration

Section 84 of the Incorporated Societies Act 2022 provides as follows:

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).

Section 84 has now been modified in its effect for existing societies during the transitional period (up to 1 December 2025) within those societies will need to re-register if they wish to retain incorporated status. Regulation 7 of the Incorporated Societies Regulations 2023 provides as follows:

7 Existing societies reregistered under Act may continue to restrict attendance at annual general meetings during transitional period
(1) Despite section 84 of the Act, during the transitional period a society may restrict the right to attend annual general meetings to delegates or other representatives of members (rather than all members) if the society fulfils the following conditions:
(a) the society was an existing society and has been reregistered under clause 7 of Schedule 1 of the Act; and
(b) immediately before 5 October 2023, the society’s rules included a provision restricting attendance at its annual general meetings to delegates or other representatives of members; and
(c) the society’s proposed constitution provided as part of the application for reregistration under clause 7 of Schedule 1 of the Act includes that provision.
(2) Subclause (1) applies to a society if, and for as long as, the society’s constitution continues to include the provision referred to in subclause (1)(b).
(3) Sections 28 and 29 of the Act do not apply to the extent that they would prevent a society from relying on this regulation.

Mark von Dadelszen advises societies and trusts throughout New Zealand involved in a wide range of activities. Mark was a member of the Reference Group advising the Law Commission on the review of the 1908 Act, and was engaged by MBIE to advise on the proposed model constitution as originally recommended by the Law Commission, and later he contributed to the development of the Ministry’s society constitution-builder. In 2021 he made Submissions (both for the New Zealand Law Society and also personally) to the Parliamentary Select Committee considering the new Incorporated Societies Bill. Apart from having decades of practical experience in governance of societies and charities (for which service he was awarded a QSM in 2012), Mark is the author Law of Societies in New Zealand (the only specialist text on the subject in New Zealand, with a 4th Edition to be published in late 2024). He writes regular articles on issues relating to societies and charities (see https://nfplaw.co.nz/articles/). For specific advice relating to the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.