Governance

Governance refers to the practices and procedures put in place to ensure that a charity is run correctly. Good governance enables the day-to-day work of a charity to align with its purpose, and includes issues such as management requirements, governing instruments, internal controls, conflicts of interest and dispute resolution.

Management requirements

If the authorised fundraiser is an organisation, then in relation to its fundraising activities, it must ensure that:

• the organisation is administered by a governing body of not fewer than 3 persons
• all business transacted by the governing body must be properly recorded in the organisation’s meeting minutes
• the minimum quorum for all meetings of the governing body must be the greater of three persons or one quarter of the governing body members.

The following requirements must be adhered to if the authorised fundraiser has individuals acting as trustees for a trust in relation to its fundraising activities:

• trusts are required to be administered by not fewer than three trustees
• all business transacted by the trustees must be properly recorded in the meeting minutes of the trust
• the minimum quorum for all meetings of the trustees must be the greater of three trustees or one quarter of the governing body members.

Governing instrument requirements

A governing instrument is a formal document that contains information about the objectives of an organisation and helps ensure that fundraising appeals are conducted in accordance with the organisation’s charitable purpose. If the governing instrument is not clearly defined and aligned, it can affect an organisation’s application for an authority to fundraise.

Governing instruments of organisations may vary depending on whether the organisation is an incorporated association, unincorporated association, company limited by guarantee, or co-operative.

There are four main types of governing instruments:

• constitution or rules of a co-operative or an incorporated association
• trust deed
• constitution or rules of an unincorporated association
• constitution of a company limited by guarantee.

It is important that the constitution fits with the objectives of the organisation. If the governing instrument is not clearly defined and aligned, it might affect the organisation’s application for an authority. Fair Trading recommends that organisations seek professional assistance in preparing governing instrument documents.

Incorporated Associations

An association incorporated under the Associations Incorporation Act is required to have a constitution, being a set of rules governing the affairs of the association, which must address matters referred to in Schedule 1 of the Associations Incorporation Act. Incorporated associations can adopt the Model Constitution developed by NSW Fair Trading to cover all matters outlined in Schedule 1 of the Association Incorporation Act, or create their own so long as it complies with the requirements of that Act.

For more information, visit the incorporated associations constitution page.

Companies Limited by Guarantee

A company limited by guarantee registered under the Corporations Act will have a constitution. Find out more on ASIC's company rules and constitution page.

Co-operatives

A co-operative registered under the Co-operatives (Adoption of National Law) Act 2012 (NSW) must have a set of 'rules' that make up its constitution. Usually the aims or purposes of a co-operative are expressed by specifying its ‘primary activity’ in its rules. The rules may also include objects.

Trusts

Charitable trusts can be set up to support a variety of charitable purposes and are governed by the deed that establishes the trust. Generally a trust is set up to hold funds and distribute those funds in line with the rules found in the trust deed.

Internal controls for fundraisers

An authorised fundraiser, in relation to its fundraising activities, must maintain an effective internal control structure over its fundraising activities. These include accountability for the gross income and all articles obtained from any appeal and expenditure incurred.

Remunerating board members

You must receive written approval from NSW Fair Trading before receiving any remuneration or benefits from the authorised fundraising organisation if you are:

• an office holder or board member of an organisation holding an authority (or deemed authority), or
• going to be appointed as an office holder or board member of an organisation holding an authority (or deemed authority) and your appointment includes remuneration or other benefits. Note: Approval must be given before you can accept the appointment.

If you receive any renumeration or benefits before NSW Fair Trading approval, you can face significant penalties under section 48 of the Act.

You will also contravene the Act if you accept an office holder or board member appointment that includes receiving remuneration or benefits before Fair Trading has approved the remuneration or benefits.

How to apply for approval

An authorised fundraising organisation must apply to NSW Fair Trading for approval. Applications must be in writing and sent to charity.inquiries@customerservice.nsw.gov.au.

The application should include the following:

• name of the director(s)
• a copy of the relevant clause/s in the governing document that provides for the remuneration or benefits to members of the governing body
• details of the amount of remuneration or benefit the person is to receive as a direct result of holding office as a member of the governing body of the authorised fundraising organisation. For example, if the person is to receive the remuneration or benefit as a director’s fee, salary or allowance, or as free accommodation or a car.

NSW Fair Trading approval is not required if the board member serves on the board by virtue of being a minister of religion or a member of a religious order.

Insurance requirements

An authority (or deemed authority) holder must maintain appropriate insurance for any appeals that involve child participants. This insurance must protect both the child and the interests of the child against any claim which could be brought against the child for property damage, public liability or other such risks.

Other insurance may be required under other legislation, for example:

• public and products liability insurance
• workers compensation insurance
• protection and association liability
• volunteer personal accident insurance for volunteers
• third party property insurance on motor vehicles.

This requirement will depend on the organisational structure and how the charity operates.

Complaints and dispute resolution requirements

Principle 14 of the National Fundraising Principles provides that authority (or deemed authority) holders must have a complaints process.  

The authorised fundraiser must provide a mechanism that will properly and effectively deal with complaints made by members of the public and grievances from employees in relation to its fundraising activities.

Internal dispute resolution processes

If the authorised fundraiser is an organisation, its governing instrument must establish a mechanism for resolving internal disputes within the membership of the organisation in relation to its fundraising activities.

Conflict of interest requirements

An authority (or deemed authority) holder should have mechanisms for dealing with any conflicts of interest that may occur involving a member of the governing body, office-holder, volunteers or employee of the authorised fundraiser, in relation to its fundraising activities.

Steps should be implemented to manage potential conflicts of interests, such as:

• adopting a conflict-of-interest policy
• establishing and maintaining a register of financial interests
• promoting a culture of disclosure
• managing any conflict of interest appropriately.

If the appointment, conditions of service, remuneration or the supply of goods or services by, a member of the governing body (or the member’s immediate family) is being considered at a meeting:

• the member must be excluded from that part of the meeting
• the quorum for the meeting must not include the member
• the resolution of the matters being considered must be subsequently ratified at a general meeting of the organisation or by a committee that has been delegated the function to ratify the resolution of those matters.

Examples of conflicts of interest of a monetary kind

Examples of monetary conflicts of interest include where:

• goods and services are supplied to the organisation by a member of the governing body or a salaried officer. The person may also benefit if the supplier is a family business or family company. Alternatively, this type of conflict may not directly benefit the person, but another member of the person’s family
• an asset belonging to the organisation is sold to a member of the governing body
• a voting member of the governing body of the organisation is in receipt of a salary, fee or some other benefit (other than reimbursement for reasonable out-of-pocket expenses).

Examples of conflicts of interest of a non-monetary kind

Examples of non-monetary conflicts of interest include where:

• a voting member of the governing body votes on a matter which directly affects that person
• the auditor, solicitor or other professional person is on the governing body of the organisation or related to a member of the governing body
• the auditor acts on behalf of two clients who have common property dealings.

The ACNC website has useful information on managing conflicts of interest.