Model Rules for Incorporation Qld.
Sample documentation that can be used to create the clubs constitution.
To setup a Not For Profit (NFP) group the first step is to create a constitution based on the model specified by the Queensland Government.. This is usually achieved by taking the model rules from the Queensland Government web site and adopting most of the standard conditions from this model document. The standard conditions include (1) the position of president, secretary, and treasurer, (2) meetings and (3) how to operate the financial matters according to current legislation.
Variations occur as the constitution takes into account local conditions such as the venue, number of meetings and defines the responsibility of committee members. If the model conditions are adopted with little changes then there will be almost no need to get a lawyer involved. There are strict rules that must be obeyed in setting up and amending the constitution so try not to make changes to the standard rules as the standard rules are written to conform with current legal practice in Queensland. In comparison with multi district clubs, autonomous single location NFPs are simpler to control..
Bye-laws can be specified to implement local rules and conditions(as an option). Bye-laws can be amended without changing the constitution.
The rose groups in Queensland are separate but have a loose association through an affiliation arrangement.
To help clubs the model rules documents can be downloaded from the Queensland government web site and appear in two downloadable forms.
Interactive PDF form with fields and notes for online submission
1st July 2019 effective 20th August 2020 per web site 6th January 2021
Model Rule changes from Office of Fair Trading
Bill Henman April 2023
All garden clubs are required to include these new rules into their Model Rules or Constitution with changes that became law on 22 June 2022.
Using a common seal
Using a common seal is now optional for incorporated associations when executing contracts and documents. The association will need to amend its rules to specify it will not use a common seal
Secretary must be 18 or older
The secretary of an association must be 18 or older to help improve the internal governance standards for associations. This will align with other management committee members.
Clarifying duty of care and diligence
The standard of care and diligence that management committees are expected to apply will be better clarified to help management committee members and officers undertake their duties and exercise their powers. Penalties apply.
Duty to prevent insolvent trading
Members of the management committee have a duty to prevent the association from incurring a debt if there are reasonable grounds to expect that the association is insolvent or will become insolvent if the debt is incurred. Penalties apply.
Not profiting from position
A committee member or officer of an incorporated association must not use their position, or information obtained from their position, to:
- gain a benefit or material advantage for themselves or another person
- cause detriment to the association.
Disclosure of material personal interest
Management committee members will have to disclose when they have a material personal interest in a matter being considered at a management committee meeting, to the management committee as soon as they become aware of the interest and to members at the next general meeting of the association.
Extend powers of OFT inspectors
The application of the Fair Trading Inspectors Act 2014 now have entry and seizure powers, including the power to enter a place where an incorporated association carries out its activities, holds its meetings or keeps its records.
Clubs should also consider the level of public liability insurance and maybe director/officers insurance. QCGC does not provide any insurance services.
Upcoming unfair contract term law changes
The Office of Fair Trading is encouraging businesses to review their standard form contracts and remove or amend any unfair contract terms before law changes take effect.
From 9 November 2023, changes to the Australian Consumer Law (ACL) will expand the prohibition on traders proposing, using, or relying on unfair contract terms in standard form contracts with consumers and small businesses.
The changes will apply to:
- standard form contracts made or renewed on or after 9 November 2023
- a term of a contract that is varied or added on or after 9 November 2023.
Australian consumer protection agencies will be monitoring businesses’ compliance with the unfair contract term laws.
The changes expand the coverage of the unfair contract term laws to protect more small business contracts than before. The threshold will increase to apply to small businesses that employ fewer than 100 persons or have an annual turnover of less than $10 million.
Other key changes include the removal of the contract value threshold and clarifying other aspects of the laws, such as more clearly defining ‘standard form contracts’.
Businesses may wish to obtain independent legal advice if they have specific questions about how the law applies in their specific situation. If there is doubt as to whether a contract term would be considered unfair, businesses should consider removing or changing the term.
The changes will allow Courts to impose substantial penalties on businesses and individuals who include unfair terms in their standard form contracts, so compliance with the law should be taken seriously.
The maximum financial penalties for businesses under the new unfair contract terms law are the greater of:
- Three times the value of the "reasonably attributable" benefit obtained from the conduct, if the court can determine this
- 30 per cent of adjusted turnover if the court cannot determine the benefit obtained from the conduct.
The maximum penalty for an individual is $2.5 million.
Businesses are encouraged to review their standard form contracts and remove or amend any unfair contract terms before new penalties take effect.
Tips for businesses to consider when reviewing their contracts:
- Consider both points of view. If you think a term is necessary to protect your business’s legitimate interest, consider the term from the other party’s point of view.
- Include counter-balancing terms. Check that your contract has appropriate counter-balancing terms. For example, if you consider that your business reasonably needs the ability to unilaterally change the product or service being provided under the contract, does the contract also allow your customers to exit the contract without penalty when this occurs?
- Avoid broad terms. Don’t have terms that are as broad as possible. Make sure terms are only as broad as reasonably necessary to protect your business’s legitimate interests.
- Meet your obligations under the Australian Consumer Law. Don’t have terms that seek to avoid your business’s obligations under the Australian Consumer Law. For example, don’t include terms that seek to limit your customers’ consumer guarantees rights, or terms that seek to disclaim any representations your business may have made outside of the contract.
- Be clear. Use clear and simple language in your contracts.
- Be transparent. Ensure key terms are clearly drawn to the attention of your customers during the sign-up process, and any renewal process.
For more information about changes to the unfair contract terms laws visit our website.
Allow about a month per letter to the OFT
Clubs should also consider the level of public liability insurance and maybe director/officers insurance.
QCGC does not provide any insurance services.
Disclaimer: Whilst every effort is made to publish accurate information, QCGC accepts no responsibility for statements made, opinions expressed or recommendations for of commercial products.