One of the biggest governance changes introduced by the Incorporated Societies Act 2022 (2022 Act) was the requirement for every incorporated society to include a dispute resolution process in its constitution. Under the previous Incorporated Societies Act 1908, that was not a legislative requirement. The 2022 Act now requires societies to have procedures for resolving specified disputes between members, officers and the society, and those procedures must be consistent with the principles of natural justice.
Most sporting organisations have now updated their constitutions and adopted dispute resolution procedures. From my experience, the difficulty is often not in applying the dispute resolution process itself, but in determining whether it’s actually the appropriate process to use in the circumstances.
Not every issue is a constitutional dispute
The dispute resolution provisions required by the 2022 Act are designed to deal with a particular category of disputes. Generally speaking, these are disputes between members, officers and the society involving allegations of misconduct, alleged breaches of the constitution, bylaws or the 2022 Act, or circumstances where a member’s rights or interests are said to have been adversely affected.
Many issues that arise in sport either fall outside those categories altogether or are subject to legal obligations and processes that need to be considered alongside any constitutional dispute procedure.
For example, there may be integrity, welfare, safeguarding, privacy, employment or discrimination considerations. Depending on the circumstances, it may be more appropriate to apply field of play rules, a selection policy, a disciplinary process, a safeguarding process, an employment process, a privacy process, or processes established under the Code of Integrity for Sport and Recreation or an organisation’s own integrity framework.
A complaint from a member about a privacy breach may engage obligations under the Privacy Act. A complaint about athlete welfare may require a safeguarding response. An employee grievance may need to be addressed through employment processes. A complaint alleging discrimination may require consideration of both organisational policies and broader legal obligations. Although each of these may arrive as a “complaint”, they are unlikely to be managed in the same way.
Start with the diagnosis, not the process
One of the themes emerging from a number of reviews across the sport sector, is that organisations can encounter difficulties when they focus on the process before properly identifying the nature of the issue being raised.
Before asking, “What process should we follow?”, first ask, “Who is involved, and what type of issue are we actually dealing with?”. The following questions may help direct you to the appropriate pathway:
- Who is involved?
- In what capacity are they involved: member, officer, employee, volunteer, coach, athlete or parent?
- What conduct or decision is being complained about?
- What right, rule, policy or obligation is said to have been affected?
- Which process is actually designed to deal with that type of issue?
In my experience, the challenge is rarely finding a process – most sporting organisations have several. The challenge is identifying which process was actually designed to address the issue in front of you. Getting that diagnosis right at the outset will usually make the pathway forward much clearer and significantly reduce the risk of procedural issues later on.
Further reading about dispute resolution
Companies Office guidance on dispute resolution procedures
https://is-register.companiesoffice.govt.nz/help-centre/running-your-incorporated-society/dispute-resolution-procedures-are-mandatory/
Sport Integrity Commission Te Kahu Raunui
https://sportintegrity.nz/making-a-complaint
