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In this topic, we discuss why rules and developing a constitution are important for effective governance. We talk about keeping cultural legitimacy at the heart of your rules. We explain when you need to write your rules down and how this strengthens your group’s governance.
While reading this topic, think about the following questions and how they relate to your organisation, community or nation:
Having rules or a constitution is critical to effective governance.
Rules set out the agreed ways people should behave towards each other. They tell people what to do (and what not to do) in a specific situation. A ‘constitution’ is a set of rules that are written down.
Like playing the game of football, knowing the rules of the game is essential for success. Everyone needs to know the rules, including the teams, captains, coaching staff, the club and its members.
Rules for your governance set out:
|
Strong rules |
Ineffective rules |
|
|---|---|---|
|
Decision-making |
Decision making is more transparent, winning support from members and staff. |
Governance is less effective and legitimate. |
|
Relationships |
Cooperative relationships and collaboration are increased. |
Conflict increases and relationships are under stress. |
|
Members’ rights |
Members’ rights and interests are protected and strengthened. |
Members’ rights and interests are overridden or treated as insignificant. |
|
Teamwork |
Everyone wants to invest their time, effort and resources. |
Leaders might be encouraged to be greedy and self-interested. |
|
Sustainability |
Economic growth is more sustainable, and partnerships are stronger. |
Private and public agencies won’t be willing to fund you. |
|
Morale |
High morale among staff and members. |
Staff and members are confused and have low morale. |
|
Self-determination |
Organisations, communities and nations are more able to exercise practical self-determination. |
Organisations, communities, and nations are less able to exercise practical self-determination. |
“When we talk about governance, we’re talking about people deciding how to work together to do the things they need to get done. How do we make decisions? Who has the authority to act for us?
How do we resolve disputes among us? How do we get community business done? Good governance means having good rules for those sorts of things, rules that are effective and that have the support of the people.”
– Stephen Cornell, ‘Starting and sustaining strong Indigenous governance’, Presentation at the Building Effective Indigenous Governance Conference, Jabiru, Northern Territory, 5 November 2003.
Aboriginal and Torres Strait Islander peoples have long placed culture at the heart of governance. Different types of organisations, communities and nations have their own governance histories and arrangements that have developed over time. Groups need to, and have the right to, develop their own rules around their culture.
Effective governance rules are culturally legitimate as well as practical. They should align with your group’s values, laws and systems of authority, and meet current governance needs. Striking this balance can be challenging, and may require people to rethink their ideas on how to govern.
“We Yawuru people, and all Aboriginal people, have always had our own cultural governance.
Our stories and philosophy comes from the Bugarrigarra, the time before time, putting the languages in the country for the people and creating laws. So now our role as law bosses on the board of the PBC is to maintain our traditions and to ensure they are part of the decision making process that the Yawuru group goes through.”
– Thomas ‘Unda’ Edgar, Chairperson of the Yawuru PBC
Rules don’t have to be written down to be legitimate. Aboriginal and Torres Strait Islander societies have sophisticated systems of law that have worked effectively without being written down. Cultural laws have existed since time immemorial, and provide rules on how to interact with Country, kinship and community.
When we speak of cultural law, we mean things like:
When developing new or more effective rules, it’s important that cultural law is respected. This doesn’t mean doing things exactly as they were done in the past. It means designing rules that are both practical and culturally legitimate.
The process of strengthening cultural legitimacy involves building on the internal strengths and traditions of your people. It takes time, courage and experimentation to work out what suits. Don’t rush it.
It’s not surprising that many Aboriginal and Torres Strait Islander groups stress the cultural importance of broad community consultation. Especially when developing new rules.
For all these reasons, don’t set your new rules in legal concrete too quickly. Allow time to test them with your members and flexibility to refine them over time.
“…Native nations should have the freedom to exercise governing power, not necessarily in western ways, but in ways of their own choosing. This means lifting the yoke of colonial control, ending the insistence that Indigenous governance looks like U.S. or Canadian governance, and accepting the fact that the solutions those nations develop will be diverse. Some will have traditional roots; some will not. But once that freedom is achieved, once those nations have put in place the governance solutions they want and have tested those solutions against the realities of their current situations, once they have the freedom to make mistakes and learn from them and make the adjustments they decide they need to make, then we believe they will be in a stronger position to develop the kinds of economies and communities they envision.
This is what self-determination really means.”
– Professor Stephen Cornell, University of Arizona
NPY Women’s Council (NPYWC) was set up in 1980 and incorporated in 1994. The organisation was founded in response to the concerns of Aboriginal and Torres Strait Islander women across the Anangu Pitjantjatjara Yankunytjatjara (APY) lands. The women were concerned about the rise of petrol sniffing in their communities. They were also concerned about the ineffectual service delivery to their Elders and those with disabilities.
“…the women were all thinking the same way. We wanted our own meetings. We all had something to say about caring for our children, our families, about our aspirations to have good lives. We wanted to talk about our issues to the government. We wanted to talk together to give a strong message. That’s why we formed the Women’s Council.”
– Nganyinytja (dec), OAM, 1980
NPYWC has never lost sight of its aspirations. It remains an active and hands-on advocacy and service delivery organisation committed to culture. One of the aspirations of NPYWC is to protect, maintain and revitalise culture. It does this by:
Anangu culture flows through the organisation from the boardroom to service delivery on the ground.
In 2008, NPYWC became incorporated under new legislation. They carried out significant consultation with members, spread across a large geographic region, about their new rule book (known as the constitution).
As a result, members introduced new clauses in the rule book. These include key guiding cultural principles such as:
NPYWC has also incorporated their culture into the way the organisation is run. Examples are:
Bush meetings
Each year NPYWC holds a bush meeting. Directors and staff go out on Country and meet with the organisation’s members. Everyone is invited to come along, not just the local community where the bush meeting is being held.
These meetings are an opportunity for NPYWC staff to spend time with members out on Country and in a bush camp. Having bush meetings allows for knowledge sharing between communities and NPYWC. It means staff and directors get out from behind their desks and into the communities. Bush meetings are a culturally appropriate way to get information out to members. They’ve proven to be a great forum for building relationships between community and staff.
Malparara way
NPYWC has an approach known as the ‘malparara way’. It’s a cross-cultural practice framework specific to NPYWC. The idea came from Anangu women. They wanted a service delivery model that would effectively and efficiently meet the needs of the local people.
In Pitjantjatjara, ‘Malpa’ means ‘friend or colleague’ and ‘malparara’ means ‘alongside a friend or colleague’. Malparara describes a way of working where 2 staff members, one Anangu and one non-Indigenous person, partner to deliver services.1‘Ngapartji Ngapartji; Working and Learning Together Workforce Development and Capability Framework,’ Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara Women’s Council (NPYWC), published 2020, [link]
The Anangu worker brings their skills and knowledge of language, culture, history, land and family. The worker brings their expertise in the field they’re employed.
“The idea is that working Malparara allows for Anangu and non-Aboriginal cultural and professional knowledge to be combined to provide the best possible service for Anangu; one plus one equals three.”2‘Ngapartji Ngapartji; Working and Learning Together Workforce Development and Capability Framework,’ Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara Women’s Council (NPYWC), published 2020,[link]
– NPY Women’s Council Workforce Development & Capability Framework; Ngapartji Ngapartji; Working and Learning Together
The malparara way is about working in a culturally appropriate way. It recognises and values the knowledge, skills and resources of the local people. The malparara way ensures the concerns and problems of the local people are listened to and addressed. It helps them access services in a culturally appropriate and effective way. It works because service delivery can be adapted to suit the local communities’ culture, norms and values. Malparara way is very effective in ensuring quality service delivery in cross-border regions.
“Women’s Council project work is hard, really complicated. It can be difficult to understand but working with a malpa (friend) makes it much easier, and the staff are much happier when they are working together. It makes difficult things much easier to understand when you are working together.”
– Tjikalyi Colin, Former Anangu staff member
These relationships are pivotal in ensuring NPYWC is active in response to sensitive community issues such as domestic violence.
As the size and complexity of NPYWC has grown, newer ways have emerged to incorporate Anangu specialist skills and knowledge.
Existing and new roles honour the history and core values of the model. They also incorporate culturally safe practice, and the key values of working and learning together.3‘Ngapartji Ngapartji; Working and Learning Together Workforce Development and Capability Framework,’ Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara Women’s Council (NPYWC), published 2020, [link]
Decision making and service development
The NPYWC process is an example of how Aboriginal and Torres Strait Islander culture can go hand in hand with good corporate governance. NPYWC’s service development approach includes:
This process makes sure that NPYWC services are continually reviewed and improved. It means that NPYWC services meet the needs of individuals and communities.
Kungka – NPYWC Annual Career Conference
Kungka is an annual conference held by the NPYWC for young Aboriginal and Torres Strait Islander women between 12 and 15 years of age. The conference provides young women with information and advice on education and employment pathways. Older, successful Aboriginal and Torres Strait Islander women come along to inspire and share their stories. Local women successful in their education and employment are also invited. They share their stories and speak to participants in their own language. Young women see positive examples of women strong in their culture and successful in their employment and education.
Staff education
New staff members get an orientation of the organisation and the region they’re based in. They’re given detailed advice on Anangu culture and cultural differences. This includes saying no, avoidance relationships, sorry business, men’s business, women’s business and parenting ways.
There are key topics to consider when developing your rules, especially if you plan to incorporate your organisation.
There are a lot of requirements for organisations to follow. It can sometimes be very confusing for new organisations to be sure everything is covered.
Understanding your group’s purpose and objectives is critical to developing your rules.
Purpose refers to the practical result that you want to achieve. It’s about your intention. To identify your purpose, see Assess your purpose and vision.
Objectives are the activities that your organisation will do to achieve your purpose. Your objectives should be broad enough to cover all activities that your organisation and its members may want to undertake.1Office of the Registrar of Indigenous Corporations, ‘A guide to writing good governance rules for prescribed bodies corporate and registered native title bodies corporate,’ Commonwealth of Australia, published 2008, [link]
Consider your objectives carefully, especially if you’re planning to incorporate. Some types of corporations, like charities and native title corporations, have legal requirements. Seek advice (from a lawyer or accountant, for example) to make sure your objectives comply.
Membership is about who’s involved in your group.
When developing your rules, consider who can be a member. Your group can choose to allow non-Indigenous people to be members or directors. It’s not compulsory but having the option gives the group more flexibility. Either way, Aboriginal and Torres Strait Islander people must always be in the majority – so they’re always in control.
Once you’ve identified who’s eligible, think about the application process to become a member, and who’s responsible for approving them. Some groups have a fee for processing applications.
It’s important to establish processes for resolving disputes about membership and cancelling or ending a membership.
Your rules should also outline what powers your members have. What those rules are depends on what your organisation is incorporated under. For information on the role of members in incorporated companies, see ASIC’s guide to Company shareholders. For CATSI Act corporations, see Members.
This refers to the amount of money members must pay if the group winds up. This liability depends on whether your group is incorporated or not.
Unincorporated
A member’s liability is determined by the group’s internal rules and agreements. There’s no specific legislation in Australia that applies to the liability of members in unincorporated organisations. Each member may have unlimited liability for the debts of the group if it winds up.
Incorporated
Groups that are incorporated can limit their members’ liability. For example, companies limited by guarantee limit their member’s liability to a predetermined, fixed amount known as a ‘guarantee’. This amount is generally laid out in the company’s constitution. Members don’t pay more than this amount if the company winds up, even if its debts are greater than the total of the member’s guarantees. See the relevant regulator website for more information (for example, ORIC or ASIC).
There are 3 main types of meetings to consider:
Directors’ meetings
Most organisations have a board of directors who provide direction to the organisation. Decisions by the board are made collectively and usually at meetings. Consider:
Members’ meetings (‘Special General Meetings’)
Incorporated organisations also have meetings with their members to discuss specific matters.
These meetings need separate rules. Consider:
Incorporated organisations must follow the process for making decisions at meetings outlined in their rules or constitution. If not followed, decisions can be challenged and may not count. For more information about the legal requirements, see Meetings held by incorporated organisations.
Annual General Meetings (AGMs)
Incorporated organisations must hold at least one members’ meeting per year. This is called the Annual General Meeting or AGM.
Consider the same points for AGMs as for Members’ meetings.
When drafting your rules, think about how you plan to finance your organisation.
Incorporated organisations must keep certain records. Members are entitled to inspect some of those records.2“Documents, records and requests for access,” Justice Connect, updated April 2022, [link]
Consider:
Consider the process to be followed if:
For more information on developing culturally legitimate conflict and dispute resolution processes, see Implement peacemaking processes.
Your rules (or constitution) should be seen as a living document. Your governance will change and evolve over time. So, your rules should be regularly updated (with caution) to reflect your organisation in practice.
If your organisation is incorporated, there are rules that you must comply with about how to change your rules or constitution. This is usually done by what is called a ‘special resolution’ at a general meeting of members. A ‘special resolution’ can only be passed if 75 per cent of the members who vote agree on the decision.
Your rules or constitution should also set out the process to formally end your organisation. This process should consider how the money and assets of the organisation are dealt with if the organisation ends.
It’s helpful to keep a written document that records how you govern your organisation. This document should be accessible to all management and staff.
This document can go by many different names. Some common terms are:
Written documents aren’t the only way to record rules. You could record your rules in a painting, a video or a diagram.
Rules need to be plainly set out so they cannot be misinterpreted or used for the wrong reasons. Translate your rules into other languages if people are more comfortable speaking in their own language. Some groups may choose to hire someone to help document or record the rules in different ways.
How you document your rules depends on whether your group is incorporated or not.
Keeping rules in a written document is a legal requirement for incorporated organisations. Some rules come from government and legislation, such as holding Annual General Meetings (AGMs) and providing reports to the regulator.
This written document is called a constitution or rule book, depending on how your organisation is incorporated. It’s the set of rules that guides an organisation, community or nation on how things work. It explains how the group is to be governed. The group must follow the rules.
For organisations incorporated under the CATSI Act, see rule books on ORIC’s website.
Keeping rules in a written document is not legally required for unincorporated (more informal) organisations. However, it can be good practice to have at least some basic rules written down about how your organization operates.3‘How to set up your organization,’ Not-for-profit Law, updated April 2022, [link]
The cultural rules that guide your group are often passed on from one generation to the next. However, even though many people in the community know these rules, it’s still a good idea to document them if they’re important to your organisation. This can help to keep your culture at the heart of your organisation and maintain cultural legitimacy. It can also help external stakeholders and new staff understand the cultural protocols important to your organisation.
The Murdi-Paaki Regional Assembly (MPRA) is an unincorporated organisation. It operates as the peak representative structure that represents the interest of Aboriginal and Torres Strait Islander peoples in 16 communities across Western NSW.
MPRA have developed their own Charter of Governance (PDF 476 Kb). It outlines how they plan to manage their own affairs, build sustainable communities and determine their own future. It explains the decision-making relationship that Aboriginal and Torres Strait Islander peoples in the Murdi-Paaki region have with the government and the wider community. It sets out MPRA’s governance vision, strategies, goals, practical governing arrangements and structures, and relationships with their community members and partners.1‘Charter of Governance,’ Murdi Paaki Regional Assembly, published September 2015, [link]
In this clip Murdi Paaki Regional Assembly (MPRA) Chair Sam Jeffries talks about how MPRA chose not to become an incorporated model and how their Charter of Governance serves as their guiding document.
Once the rules of an organisation are formally adopted, they’re binding on boards, managers and staff. But there’s no point having binding rules or policies if they’re not enforced.
Everyone should be clear about the rules. It’s the board and management’s job to make sure that the organisation’s rulebook, constitution, or charter are widely understood and fairly enforced. At meetings of the board, it’s the chairperson’s role to enforce rules relating to meetings.
Creating and enforcing effective rules can present challenges for leaders, but there are always solutions. For example, some leaders try to manage complex organisations without knowing the rules. Talk to them to help them understand the rules of your group, so they can lead effectively.
Some leaders can be too by-the-book running meetings and making decisions. This can intimidate, confuse and frustrate board directors. Let your leaders know the bigger picture for your group, so they don’t just focus on the small details. Build trust with them. Help them be confident to let board directors guide meetings and decision-making.
Language barriers or literacy levels can impact understanding of rules. Record your rules in different ways so all members of your group can understand them. For example, record them in a painting, in language or using video.
It can be difficult to understand the rules related to technical and financial requirements. It may be hard to keep up with changing government rules and regulations. Use consultants like accountants and lawyers or regulators (ORIC or ASIC) to understand how to comply.
Enforcing rules is not an easy thing to do. It takes skill, confidence and authority.
Leaders can build confidence through governance training. Governance training explores ways of putting rules into practice and applying them in the cultural contexts in which they operate. Training may be offered internally by your own organisation. There’s also external training available, for example:
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