Relocating the office...where to?

robinsm · January 18, 2015

Don't you hate it when people want to micromanage things that are already entrain...

rhysmcc · January 18, 2015

Thanks for the informative reply. A little communication goes along way and i thank you for taking the time to engage with us on this forum Andy.

timb · January 19, 2015

After reading this & other threads re the constitution, I am still wondering at some of the debates.

Firstly, why are there references to the "ACT model rules" not allowing such things as postal voting etc? The Model Rules are the bare minimum, ie those that apply in the absence of other rules written into a particular constitution, eg if you want to have postal votes, write it in the constitution & it overrides the model rules. The only thing that must be in all not-for-profit constitutions is reference to individual members not benefiting in the event of wind-up.

Secondly, you don't have an Acting Public Officer. The Public Officer can delegate while on leave, but remains the Public Officer until replaced.

Andy is correct in that you can't introduce a new constitution bit-by bit, as there are guaranteed to be unintended conflicts betwixt new and old.

rhysmcc · January 19, 2015

The postal voting wasn't an issue with model rules but not something allowed under the act (law) which governs associations in the ACT. The consitition is made up of sections, most don't relate to each other. It's quite possible to change one section without having any effect on another section. Most members seem to agreeable to the idea of reducing the number of board members. However not many seem keen on losing the state based representation. How many times will we need to vote on this issue before we reach the combination that is the most suitable to the members.

coljones · January 19, 2015

The postal voting wasn't an issue with model rules but not something allowed under the act (law) which governs associations in the ACT. The consitition is made up of sections, most don't relate to each other. It's quite possible to change one section without having any effect on another section. Most members seem to agreeable to the idea of reducing the number of board members. However not many seem keen on losing the state based representation. How many times will we need to vote on this issue before we reach the combination that is the most suitable to the members.

"Most members seem to agreeable to the idea of reducing the number of board members." Most members - or some members - or a couple of members - or a closet full of members?

By all reports we have a board of 13 made up of people with eminently impeccable qualifications and experience. We are told that the board members all have their shoulders to the wheel pulling RAA and Jabiru out of the mud.

Reducing size of the board to 7 will achieve what? It seems to be that the work output and effectiveness of the board will halve if they all keep their shoulders to the wheel and we can't guarantee that we will get top quality board members with a wide range of expertises (plural).

While we still have the willing workers on the board I would like to see them complete and deliver the "vision" documents and then have a discussion across RAA and its members about what sort of governance we need to have.

RAA is both a regulatory and advocacy membership based not for profit association - A BHP model is not appropriate, the NRMA model is bastardised so maybe we need to look elsewhere. I am afraid that most lawyers and MBAs would be completely lost in the model we actually need.

I am quite happy with the changes that have been made, thus far, to the rules (but more than less) but "going forward" there needs to be a wider discussion (no more "cop this") which may take longer than a half hour block at an AGM.

IMHO

turboplanner · January 19, 2015

What stuns me Col, is that anyone would try to conduct complex business on an AGM day, when members can organise a General Meeting any time they like in any location with any agenda.

The main difficulty is obtaining the numbers, but that has been done once, and could be done again with a good agenda, good strategy and good management.

timb · January 19, 2015

Sorry Rhysmcc but the ACT Associations Act & Regs do not prevent postal voting. The Model Rules require the voting to be done at the AGM, but as I stated earlier, your own constitution & rules overrides.

coljones · January 20, 2015

Sorry Rhysmcc but the ACT Associations Act & Regs do not prevent postal voting. The Model Rules require the voting to be done at the AGM, but as I stated earlier, your own constitution & rules overrides.

can you provide chapter and verse as there is a belief among those who know, and their legal advisors, that postal ballots are not permissible under the ACT Act and Regs, which takes precedence over an orgs rules, which take precedence over the model rules.

gandalph · January 20, 2015

File 1991-46.pdf is the ACT Associations Incorporation Act 1991 and file 1991-36.pdf is the ACT Associations Regulations 1991. The Act was republished in May 2012 and is the current version while the Regulations was republished n June 2013 and is also the current version. Great bedtime reading for those of us suffering insomnia. Enjoy!

DWF · January 20, 2015

I am not a lawyer (even a bush one) but I have read through the Act and Regulations and as far as I can see timb is correct.

The Act specifies that an association MAY adopt the model rules but is not required to do so as long as certain provisions of the Act are complied with.

31 Rules

(1) The rules of an incorporated association are—

(a) if the association, or a group of persons proposing to form the association, has adopted the model rules under section 16 © (i), 26 (1) (b) or 33 (1) (a)—those rules as in force from time to time; or

(b) if the association, or group, has adopted rules other than the model rules under section 16 © (ii), 26 (1) (b) or 33 (1) (b)—those rules as altered from time to time in accordance with section 33.

(2) If the model rules make provision in relation to any matter not provided for in the rules of an incorporated association, the rules of the association are taken to include the provision of the model rules in relation to that matter.

32 Rules other than model rules

For sections 16 © (ii), 26 (1) (b) and 33 (1) (b), rules other than the model rules are taken to comply with this section if they—

(a) provide for the matters stated in schedule 1, column 2 as required by schedule 1, column 3; and

(b) provide for any prescribed matters; and

I have not found anything in the Act which prohibits postal voting or prevents an association adopting postal voting in its rules.

Although it does incorporate some of the model rules the RAAus constitution has many provisions that are not in accord with the model rules.

In the short term one provision of the model rules that I would like to see incorporated in the RAAus constitution is:

29 Voting

(1) ...................

(2) All votes must be given personally or by proxy but no member may hold more than 5 proxies. (my bolding. Only 3 would be even better!)

This would limit the ability of any one person/group to unduely bias the vote (provided there was reasonable attendance at the meeting).

It would be even better if it read:

(2) All votes must be given personally, by postal vote or by proxy but no member may hold more than 3 proxies.

DWF

coljones · January 20, 2015

Sorry Rhysmcc but the ACT Associations Act & Regs do not prevent postal voting. The Model Rules require the voting to be done at the AGM, but as I stated earlier, your own constitution & rules overrides.

Timb, below are the parts of the Act that cause problems for us as a widespread organisation - "Alteration of Rules" (Part 33) and "Special Resolutions" (Part 70)) . It is a major headache with the ACT Legislation that is not replicated in Associations Incorporation Acts in more enlightened jurisdictions.

I do know an organisation registered under the ACT Act that provides for postal rules changes but my reading has it that that is not permissible. You could easily go through an easy, but illegal, rules change, the registrar staff don't read every bit of paper but you leave yourself in legal limbo if the rules are ruled out of order and you have relied on them for some activity.

It may well be that the easiest solution is to move our incorporation to, say NSW, and work on the constitution from there. There is no need to move our office as most jurisdictions have quite liberal residency rules. One of the issues with a change of domicile is the service of documents and the viewing of records but this could be achieved by nominating a solicitor in Queanbeyan, NSW as our agent and public officer.

Associations Incorporation Act 1991 Page 20

"33 Alteration of rules

(1) Subject to this Act, an incorporated association may, by special

resolution, alter its rules in whole or in part and may, in particular—

(a) adopt as its rules the model rules as in force from time to time

instead of rules other than the model rules adopted under

section 16 © (ii) or 26 (1) (b) or paragraph (b); or

(b) adopt as its rules other rules that comply with section 32

instead of the model rules adopted under section 16 © (i) or

26 (1) (b) or paragraph (a).

(2) If an incorporated association has resolved to alter its rules, the

association must, not later than 1 month after the resolution was

passed, lodge with the registrar-general a notice setting out the

particulars of the alteration, and including a declaration by at least 2

members of the committee of the association to the effect that a

special resolution referred to in subsection (1) was duly passed by

the association.

Maximum penalty: 2 penalty units.

Note If a form is approved under s 126 (Approved forms) for a notice, the

form must be used.

(3) If a notice relating to the alteration of the rules of an association has

been lodged under subsection (2), the registrar-general may give

notice to the association that it is required to lodge a copy of its

rules with the registrar-general.

(4) If an incorporated association has been given notice by the registrargeneral

under subsection (3), the association must, not later than 1

month after the date of the notice, lodge with the registrar-general a

printed copy, in consolidated form, of the association’s rules as

altered and in force at that date.

Maximum penalty: 2 penalty units.

(5) A resolution to alter the rules of an incorporated association is of no

effect until a notice has been lodged by the association under

subsection (2).

34 Illegal objects or rules

An object or rule of an incorporated association that is inconsistent

with this Act or with another law in force in the ACT is of no effect. "

Associations Incorporation Act 1991 Page 45

"70 Special resolutions

A resolution of an incorporated association is taken to be a special

resolution if—

(a) it is passed at a general meeting of the association, being a

meeting of which at least 21 days notice, accompanied by

notice of intention to propose the resolution as a special

resolution, has been given to the members of the association;

and

(b) it is passed by at least ¾ of the votes of those members of the

association who, being entitled to vote, vote in person or, if the

rules of the association permit voting by proxy, vote by proxy

at the meeting.

DWF · January 20, 2015

Aaaah! I seem to have missed that bit. (You can see why I'm not a lawyer.)

I see the dilema.

Does anyone know if RAAus (or anyone else) has sought (and received) legal opinion on postal voting in our constitution?

So to mitigate against proxy vote stacking we should amend the constitution by adding rule 29 Voting from the ACT model rules.

29 Voting

(1) Subject to subsection (3), on any question arising at a general meeting of the association a member has 1 vote only.

(2) All votes must be given personally or by proxy but no member may hold more than 3 proxies. (My bolding and change from 5 to 3 proxies.)

(3) If the votes on a question at a general meeting are equal, the person presiding is entitled to exercise a second or casting vote.

(4) A member or proxy is not entitled to vote at any general meeting of the association unless all money due and payable by the member or proxy to the association has been paid.

Currently Rule 29 has been "Deleted" from the RAAus Rules.

Does anyone know the history of this? Was there ever a Rule 29? If so, why was it deleted and when?

[Also, our Rule 28 "Making of Decisions" has been signifcantly pared down from the Model Rules Rule 28 Making of Decisions.]

I agree that it would be desirable to operate in a more benign legal jurisdiction than the ACT.

DWF

frank marriott · January 20, 2015

Limiting proxy votes? The person I gave my proxy to at the last meeting didn't register it (that won't happen again) so without postal votes someone needs to be able to receive proxies , who will register them regardless of personal opinion, or a member's right to vote is limited - OR have someone at head office appointed to receive unlimited proxies.

January 21, 2015

So lets take the AGM as a case in point. At the AGM there was significantly less than 100 folk present. but for argument sake lets say that we did limit a single member to hold 3 proxys...that means that the entire organisation of 10,000 members could have been determined by (best case and its unlikely to occur) 300 votes.... I know nothing can be voted on unless its provided prior to the meeting in enough time to be presented to the membership but realistically do we want to limit the involvement of members in RAAus business...I contend we don't get enough involved today as it is and anything that further limits that is probably in my opinion, not a good idea. Being as your a WA member you would surely understand that not all members, no matter how interested they are, can get to every meeting.....That in my opinion should not prevent you having a say.

I don't see an issue with Proxy votes, as a member I can determine exactly which way I want to vote and the fact that I give someone my proxy means that they simply have to provide that vote when counting, they do not have the right to change my No to a Yes or voice versa.....

Andy

gandalph · January 21, 2015

Limiting proxy votes? The person I gave my proxy to at the last meeting didn't register it (that won't happen again) so without postal votes someone needs to be able to receive proxies , who will register them regardless of personal opinion, or a member's right to vote is limited - OR have someone at head office appointed to receive unlimited proxies.

Frank, as you say p erhaps a way around that would be for all all proxy notifications to be lodged with a disinterested person, e.g. the public officer, who would register the proxy and then notify the person who you issued the proxy to that is would be available to collect at the meeting. If the proxy wasn't collected by the time the vote(s) were to be taken then the public officer would become the defacto proxy holder and vote as directed by you. A bit clumsy and it might take a bit more effort on the part of the proxy giver to make his/her wishes clear but perhaps worth considering.

I don't like the idea of limiting the number of proxies a person can hold. That would seem to potentially stifle a members chance to cast a vote.

DonRamsay · January 21, 2015

If you have a look at Rule 29 in the RA-Aus Constitution you will see that it reads: "29. Deleted". This was a conscious decision by those who wrote our Constitution to NOT follow the model rules which, at Rule 29 does restrict the number of proxies that can be held by one member to 5.

You have to remember that the Associations Incorporation Act 1991 seems to have envisaged a club with about 100 members - something like a typical social or sporting club located in one town . So, limiting proxies to 5 and requiring 5% of the membership to call a general meeting make some amount of sense. But, in an organisation with around 10,000 members that is spread across a country the size of Australia, these rules make no sense at all.

The Act in the Aust Cap Territory is very clear and specific about no postal votes. Firstly, changes to the Constitution can only happen via a Special Resolution. For a Special Resolution to succeed, " it is passed by at least ¾ of the votes of those members of the association who, being entitled to vote, vote in person or, if the rules of the association permit voting by proxy, vote by proxy at the meeting." Clearly, no allowance for Postal Voting.

We have postal voting for elections and that is allowable but for a Special Resolution to be passed it can only be voted on by those present at the meeting in person or by proxy. End of story unless you want to move the registered office to NSW which does allow postal voting in its equivalent Act.

I did have a look some time ago about how many rules need to be changed to achieve a reduction in Board Members and it was quite a few. If you reduce the Board numbers to 7 or even 5, trying to maintain some form of Regional representation basis for elections becomes quite silly with a total inequity for the more populous states and a gerrymander for the less populous regions. So, if you are going to change - lets get it right once off.

I strongly agree with Col Jones that the re-write can't just be done and mailed to members 3 weeks before the General Meeting that will get to vote on it. A small group under principles dictated by the Board should draft the new Constitution. The Board should then review it with input from the lawyers and achieve as close to consensus as is possible before it is put to the members for review and comment using the Notice of Proposed Rule Making process. There would need to be information sessions presented in a number of regions like SE Qld, Central NSW, Victoria (near Melb), South Aus near Adelaide and in the West near Perth and in Tasmania. Also, an information session should be held at NATFLY to give as many others a chance to understand and ask questions.

Somehow I doubt Tasmania and WA would ever be ready to give up regional representation regardless of how pointless that is. In the end it just has to get 75% of the votes that are cast in person or by proxy at a General Meeting. This is not an impossible hurdle but it is high enough to make limbo look easier than clearing it.

coljones · January 21, 2015

Don was heard to say

Snip...snip...snip

A small group under principles dictated by the Board should draft the new Constitution. The Board should then review it with input from the lawyers and achieve as close to consensus as is possible before it is put to the members for review and comment using the Notice of Proposed Rule Making process.

There needs to a bit of a wide ranging discussion about the specific limitations and solutions as well as good ideas even before the board streams off on its escapade. (remember the Ops manual debacle - I don't think anyone knew what they were up to with that)

There would need to be information sessions presented in a number of regions like SE Qld, Central NSW, Victoria (near Melb), South Aus near Adelaide and in the West near Perth and in Tasmania. Also, an information session should be held at NATFLY to give as many others a chance to understand and ask questions.

This should probably happen first so that principles and alternates can be work shopped. The final,mosquito castrating, rules should then follow - we don't need 10,ooo opinions on grammar.

Somehow I doubt Tasmania and WA would ever be ready to give up regional representation regardless of how pointless that is. In the end it just has to get 75% of the votes that are cast in person or by proxy at a General Meeting. This is not an impossible hurdle but it is high enough to make limbo look easier than clearing it.

Or Qld N or S

rhysmcc · January 21, 2015

Not that much needs changing, Appendix B details the regions and the number of board members and 18vii regarding the number required for a quorum.

I can't see why the "Regions" couldn't just be changed into 1 Region with 5 Board members, but I agree with both Don and col that a sub committee needs to be established to start hashing out ideas and drafting the changes, better yet they actively discuss the ideas/changes here and with the members first.

In terms of our proxy system, isn't it almost like postal voting already. You could appoint the Secretary the proxy with the form saying to vote For or Against the resolutions presented.

DonRamsay · January 21, 2015

. . .In terms of our proxy system, isn't it almost like postal voting already. You could appoint the Secretary the proxy with the form saying to vote For or Against the resolutions presented.

Yes, and if you nominate the chair of the meeting and direct him/her to vote as you direct you effectively have a postal vote. There will always be a meeting chair so your proxy will always be valid regardless of who turns up as long as it is submitted on tine - no later than 24 hours before the meeting - but best to get itin as early as possible.

coljones · January 21, 2015

Yes, and if you nominate the chair of the meeting and direct him/her to vote as you direct you effectively have a postal vote. There will always be a meeting chair so your proxy will always be valid regardless of who turns up as long as it is submitted on tine - no later than 24 hours before the meeting - but best to get itin as early as possible.

But we need to ensure that the proxy holder is obliged to vote the proxy, and that if the proxy holder fails to attend the meeting it flows to someone else or the chair and that the office should collate and publish the proxies to minimise misdealing of the proxies.

There is probably a need to permit open proxies so that the holder, on the day, can hear the arguments and caste proxies appropriately. A postal vote would not support this capability.

I see no need to minimise proxies each member holds as all the members are entitled to be involved in the governance of their association and a limitation on the holding of proxies would disenfranchise them.

I recall some legal issues over proxies at one of our leading not for profits where the chair forgot to vote the proxies he had in hand that didn't support an increase in directors fees. He was initially barred for 5 years and overturned on appeal when he successfully argued that ASIC didn't prove that he did it deliberately.

turboplanner · January 21, 2015

Given that for its most important meeting in history, the RAA Secretary, in sending out the notice of meeting, provided a summary of the issues and invited proxies, and the resulting large number of proxies swamped the votes of the people who had instigated the meeting, I would have thought playing with proxies might have been a more sensitive issue.

Proxies are a strategic weapon, and I've been in quite a few meetings where someone has controversially decided and issue his way by walking into the meeting with a bag full of proxies.

I recommended a year or two ago, the simple alternative of writing the the ACT Department of Justice requesting the Associations Incorporation Act 1991 be amended in clause 70 (b) to allow postal or electronic voting in line with other jurisdictions.

If that had been done it's probable you would have had postal/electronic voting now, and even now, I wouldn't expect there would be more than 12 months delay.

frank marriott · January 21, 2015

Given that for its most important meeting in history, the RAA Secretary, in sending out the notice of meeting, provided a summary of the issues and invited proxies, and the resulting large number of proxies swamped the votes of the people who had instigated the meeting, I would have thought playing with proxies might have been a more sensitive issue.Proxies are a strategic weapon, and I've been in quite a few meetings where someone has controversially decided and issue his way by walking into the meeting with a bag full of proxies.

I recommended a year or two ago, the simple alternative of writing the the ACT Department of Justice requesting the Associations Incorporation Act 1991 be amended in clause 70 (b) to allow postal or electronic voting in line with other jurisdictions.

If that had been done it's probable you would have had postal/electronic voting now, and even now, I wouldn't expect there would be more than 12 months delay.

Changing proxy voting would make little difference to an outcome - if a person does not agree with what is being pushed then they will not support it whether it be by proxy, postal or electronic. It's the idea/s that has to be sold rather then method of voting (I am not against postal voting if it was legal either).

turboplanner · January 21, 2015

Frank, the problem with proxy voting is that now and again it is abused, and the wrong decision is made.

For example an Association may have a festering issue which polarises people, and I've been involved in several cases where, without prior warning, a big bundle of proxies arrives in the charge of someone with his own agenda, and the people present in the meeting, hearing the latest information are overridden by the numbers.

Out of the many Associations I've been involved with, this only happens once every few years, but it is the weakness of the proxy system, and I'd think those who attended the EGM a couple of years ago, and were rolled, losing the cost of their travelling and accommodation wouldn't like to see the same thing happen again.

I'd agree that when these occasional secret agendas are not present, it works very well, but often causes some heartache moment when someone comes up with a compelling argument at the meeting which the proxies are committed to vote against.

frank marriott · January 21, 2015

How would postal change that?

turboplanner · January 21, 2015

In the EGM case you've got a point, because I suppose that if the Secretary sends out Meeting Notices with his own version of how the sky is falling, and tells everyone to get their postal votes in, then the result would be no different.

And I suppose you could campaign on the quiet and finish up with the same number of supporting postal/electronic votes as proxies.

But it would give more flexibility during a meeting, especially if electronic voting was allowed up to the time the Motion was put to the vote - a bit like electronic auctions.

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