Navigating the Legal Stuff – Inside ActionStation

I think it can be tempting to try and do certain things by yourself, or to just work it out as you go, especially if you’re on a tight budget. But it’s really worthwhile to invest the time and resources to get it right at the beginning.

Laura O’Connell Rapira (Te Ātiawa, Ngāpuhi, Te Rarawa, Ngāti Whakaue), Director ActionStation.

How does ActionStation’s Legal Structure work?

ActionStation has a relatively complicated legal structure in that the day to day operations are performed by a Limited Liability Company and the single share holder is an Incorporated Society of which ActionStation members, are members. This isn’t really that common with NGOs, but it is often used in iwi and hapū contexts. For example, the hapū will be the Incorporated Society and the Limited Liability Company will exist to run the day to day operations in a way that grows the asset base of the hapū.

Why did you choose this type of legal structure?

We wanted to have the nimbleness and agility of a company but at the same time ensure that we were beholden to a community of people. We didn’t want to be a charity because our political advocacy work may have put our charitable status at risk. For us, it’s about two things: Te Tiriti o Waitangi and democratic participation. Both have legal implications in relation to our organisation’s structure and constitution.

What are some of the risks of the way your organisation is structured and how have you sought to mitigate them?

One of the identified risks of incorporated societies is the potential for a small faction of members to take over the organisation and try and push it in their own direction – or the behaviour or actions of a member or group of members could bring the organisation into disrepute. The way we decided to mitigate the common risks associated with Incorporated Socieities was to increase our size; essentially, to become bigger. Increasing the level of democratic participation means that we can guard against the potential for one person or group to weild too much power. To ensure that the power rests with the community. At ActionStation, we have this giant community – over 280,000 on our mailing list and over 400 members of the Incorporated Society.

What are some of the benefits of your legal structure?

One of the most important things is democratic participation. Under traditional models of governance, you need to get a quorum to turn up at meetings and that can be a real struggle. It’s also a bit of an archaic way of working. We found that for younger people who haven’t been through governance training, the whole thing can be quite intimidating. The culture and the language and all the rules can be a bit confusing and slow. Fortunately, at ActionStation, we are really good at fostering democratic decisions. We do surveys every week, we do polls on FB, we’re always actively looking for ways to encourage democracy within our movement and our community. This allows for a really broad range of people to participate and to influence the scope and direction of our work. We see this as a positive. We know that with greater numbers we will have better representation. It also allows us to be fast and responsive because we’re always communicating directly with our members.

Having such a large membership must present some challenges. How do you facilitate democratic participation in a practical sense – how do you allow 400 members each to have their say?

That’s right. It’s not typical for an Incorporated Society to have so many members, but we’ve found ways to make it work really well. To take one example, recently we needed to elect some new members to our Board. We identified the skill sets we were lacking and put a call out to the community. We had a specific range of criteria we were looking for, such as people with experience working in Te Ao Māori and knowledge of Te Tiriti o Waitangi, as well as people with experience working in governance of a Not-for-profit. Once we received the applications they were read by three of our board members who then made a shortlist of five. We conducted interviews with those five applicants and then co-created bios of each one. By co-created, I mean, together with the applicants. We circulated these five bios to all our ActionStation members via an unlisted, custom-built microsite which included an in-built voting platform. This allowed our members to read all the bios and then at the end, choose who they wanted to see join the Board. We had over 200 people vote in that process.

So technology is your friend?

Definitely. We are very big at hacking together free online tools. For the microsite we used a website called Strikingly – similar to weebly or wix. We used that one because it was the cheapest. For the voting platform we used Typeform. To advertise the role, we used Do Good Jobs and our blog. We use Loomio to allow decisions to be made without requiring people to be physically present.

Is it hard to become a member of ActionStation?

Not at all. We very much believe in making it as easy as possible for people. To become a member of ActionStation, you just need to have taken action across all five pillars that we work across. That can be as simple as signing a petition. The five pillars are Economic Fairness, Whānau Wellbeing, Thriving Papatūānuku, Vibrant Democracy, and Te Tiriti o Waitangi. What we’re looking for is people’ to demonstrate committment to these values.

What sorts of decisions do you put to your Incorporated Society members?

The main role or function of the members are to appoint Board members and to sign off on annual and financial reports. They also ask us tough questions and shape our constitution. Our constitution is reviewed every three years.

Has your legal structure changed over time?

Yes, we recently went through complete review of our constitution and one of the things we were looking at was whether our constitution is fit for purpose. We found that fundamentally it is, but we needed to make some refinements in a few key areas. For example, when we started out we had a more traditional governance structure and we struggled for the first three years trying to get people to AGMs. It’s increasingly difficult these days to everyone in the same room at the same time so we knew with this review that we had to remove some of those barriers to participation. We’re good at getting people to participate online, so we wanted to build that flexibility into our constitution and AGM structure as well. The review addressed this issue and made it much easier for our members to participate.

Another thing that changed was the language of our constitution. A member made the very good point that our constitution referred to “The Treaty of Waitangi” instead of “Te Tiriti.” This was a very useful discussion for us to have as an organisation because it required us to talk about and reflect on what we mean when we use Te Tiriti versus The Treaty. For those members who didn’t have a good understanding of Te Tiriti and how it impacts and influences all our work, this was a really important exercise to go through.

Do you have any advice for community organisations, especially with respect to legal issues?

I think just to recognise the enormous value of the legal side of your work. I think it can be tempting to try and do certain things by yourself, or to just work it out as you go, especially if you’re on a tight budget. But it’s really worthwhile to invest the time and resources to get it right at the beginning. Get advice from people who think about these things all the time and work in this area daily. Especially if you’re doing any kind of political advocacy or campaign work. Challenging entrenched power structures always comes with a degree of risk. But if you have really strong policies that are able to predict a range of scenarios, based on legal advice, it means that when something does come up – like a court case or a complaint – it doesn’t take away from the time you would be spending on core business. If you have good policies and a robust constitution that you are adhering to, you’ll be legally safe and reputationally safe, and ultimately that’s about safeguarding your organisation into the future. It’s worthwhile investing the time and money now to avoid more costly expenses later.

Are there any other services that you recommend?

The Open Network This online password-access only library includes templates for things like job descriptions, how to write internal policies, etc.