Ross Irving
Apr 3, 2018

Draft Constitution

17 comments

 

Constitution Review

Monday, 19 March 2018

12:24 PM

My comments below are in italic font.

In considering my comments regarding this constitution review, I have tried to keep in mind the objectives of our Association which are expressed as follows.

 

The objects and purpose of the Association shall be:

a. To establish a non-political and non-sectarian Ratepayers Association to provide a forum for its members;

b. To promote and develop civic pride in the Territory;

c. To use the Association's best endeavours to safeguard the interests of the Ratepayers within the Territory;

d. To promote acceptable development within and adjacent to the Territory or which may otherwise affect members of the Association;

e. To provide a convenient means of providing and sharing information with and between the members.

For that purpose:

(1) The association shall maintain a website that is capable of being accessed by all members.

 

It can be seen from the above that one of the key objectives of our association is that of advocating the views of the members and safeguarding their interests. So my first comment relates to membership.

My proposed alteration would be:

a. Residents who are currently enrolled with the Australian Electoral Commission using an address within the Territory and who are eligible to vote in a Federal or Tasmanian Election.

b. Persons who pay rates in respect of property situated in the Territory and spouses/partners of such persons.

c. Persons not included in either (a) or (b) above but who have interests in the Territory and have the approval of the Association etc etc.

This amendment (a. and b.) would ensure members would either own property within the territory or would be genuine residents.

 

Brett has offered this comment regarding membership:-

Another issue the working party observed is that if there are multiple owners registered on title, eg 4 brothers and each has a spouse/partner then potentially there are 8 memberships involving 8 votes available to that property compared to the single registered property owner next door who has one membership and one vote.

Then there is the issue of the landlord and tenant. One can join under 5a and the other under 5b.

Members might wish to consider whether it is one membership, one vote per property.

 

I have given this idea some consideration and offer the following.

My initial thought was that there was a degree of unfairness in the rules if several registered voters could originate from one property whilst only a single voter would be entitled from another.

However, on reflection, I believe the associations purpose is to represent the views of the people who have made the territory their home, equally with the absent members who own the properties. (Of course we also have several owner occupiers). So, on balance, I’m not in favour of a move to one membership, one vote per property.

Yon has offered some interesting ideas relating to Votes and taking of polls, the powers of the Committee and the attendance of persons who are not financial members to a general meeting.

When considering the following it is important to remember that a significant proportion of eligible members are not local or permanent residents.

 

4 - Sections 20 and 21; Votes and taking of polls.

It is not made explicit but Section 20 (4) seems to imply that a vote is carried at a minimum margin of 50% + 1. This is clearly based on a majoritarian democratic model and may be a misfit to the scale of our association. Small scale community democracy should lean much more heavily toward collaborative consensus building through deliberation where the concerns of the minority views are engaged with through dialogue and incorporated as much as possible into a motion BEFORE it is eventually voted on.

I strongly believe that motions carried at a 50% +1 margin is too small when making potentially big decisions that affect the whole community. If the margin is that small it is a clear indication that pre-voting deliberation has failed somewhere and half (or close to) of the community has a problem - that is a BIG problem. The margin has to be higher like say 66%. A margin that high or higher -75% clearly indicates that deliberations have worked and people’s concerns have been incorporated into the motion or at least their concerns have been engaged with and they understand the rationale for the motion even if they don't agree with it all. This process will result in much higher community sense of legitimacy regarding decisions made.

I am completely on board with Yon’s argument; in fact I am inclined to take it a further step. For example - If we are voting on a motion that the DSRA is supportive of some proposition or other, and 65% vote for it and 45% against, the motion would be carried. If a letter were to be drafted to some organisation advising the DSRA support for the proposition my belief is that letter of support should also clearly advise that although a majority were in favour of the proposal 45% were against. To simply say the majority supported the proposition would misrepresent the membership.

 

5 - Powers of the Committee Section 23 (c) says: (the committee) has power to do anything that appears to the committee to be essential for the proper management of the business and affairs of the Association.

Whoa that sounds scary. Is this linked back into being bound by the rules of the constitution somewhere?

 

Although I can understand there will be administrative decisions required to be made by the executive from time to time for the proper management of the Association I also understand Yon’s point. I would be interested to see some boundaries developed. For example, if the committee decided that on behalf of the membership it was imperative to issue a press release on some matter relating to the Territory, it should be bound to clarify that the statement was the opinion of the committee – not that of the membership. With our new communication tools now becoming available I think the number of times the committee will be compelled to act on significant matters without reference to its membership should be few.

 

6 - Section 32 (5) is proposed to say: If a member of the Association has not paid his or her annual subscription for a financial year of the Association on or before the commencement of the annual general meeting of the Association that is held during that financial year, whichever is the later day, he or she is not entitled to attend, or vote at, that annual general meeting.

In my opinion removing the word 'attend' above would be good. People should always be able to attend the meeting of their community - freedom of assembly and they might want to try before they buy (join). I am sure we imagine ourselves to be inclusive rather than exclusive.

 

I am somewhat supportive of this argument. I don’t mind the attendance of non-members as long as they can’t vote or participate. (Other than invited guest speakers etc)

Proxy voting.

As mentioned above, the membership of our association includes a significant proportion of non-residents who will in many cases be unable to physically attend association meetings.

The new Web site together with other electronic media will assist in enabling these members to be involved in communicating their opinions on a range of matters.

The Queensland Associations Incorporation Regulations include the following clause regarding attendance of a meeting by use of technology which may well be worth considering. Their rule states that members who participate via technology are taken to be present at the meeting. Our rule for special resolutions states that members must be present in person. I would be interested in a ruling on whether this in fact means physically present in the meeting room. Perhaps they can be present, in person via a video link?

Procedure at general meeting

(1) A member may take part and vote in a general meeting in person, by proxy, by attorney or by using any technology that reasonably allows the member to hear and take part in discussions as they happen.

(2) A member who participates in a meeting as mentioned in subrule (1) is taken to be present at the meeting.

 

In our constitution there are only a few matters that must be decided by personal vote at a general meeting.

A special resolution is required in order to change the name of the Association (s10),

to change the Rules of the Association(s18),

to amalgamate with another association(s25),

to wind up the Association(s32)

and to alter annual subscription (MR32).

NB (1) For the purposes of this Act, a resolution is a special resolution if it is passed by a majority of not less than three-quarters of such members of an incorporated association entitled under the rules of the association to vote as may be present in person at a general meeting of which notice specifying the intention to propose the resolution as a special resolution was given in accordance with those rules.

 

Brett has asked the members to consider the following:-

The draft of the proposed new rules is out there for membership consideration.

Is this forum and perhaps an online survey sufficient for members to be able to express their comments/views on the proposed new rules?

Should there be an opportunity for interested members to be able to attend a meeting to consider in detail the proposed rules?

Comments/feedback would be appreciated.

 

As per my previous comments I believe that much of the consultation can be undertaken via this forum - perhaps augmented by the survey monkey app

 

One of the issues we face in trying to bring about a change in the rules is clause 11 in the existing constitution. The clause requires that a notice of motion to change the constitution is given at one GM and voted on at a subsequent GM. The view we have formed is that the motion put at the first meeting needs to be specific as to the changes being proposed. This would require a settled form of the new rules to be part of the motion put at the first meeting and voted on at the second meeting. Any attempt to move a motion at the second meeting to amend the original motion by way of amending the proposed rule changes would appear to negate the whole process if that proposed motion was passed at the second meeting. We could end up being stuck in a revolving door!

We need to be in a position that the proposed motion put at the first meeting is one that is going to be passed by a majority of at least three quarters of those attending and voting at the second meeting.

A somewhat awkward situation but one that needs to be embraced.

 

My initial thought it that we should be able to accomplish most of the revision thru this forum together with the surveymonkey survey tool. The aim would be to get close to consensus via the forum. If some members prefer to discuss the draft on a face to face meeting perhaps this could also be facilitated. Once the membership has had an opportunity to consider the draft and the amendments proposed by the membership have been considered by the committee and either included/rejected etc an updated draft would be circulated. If the membership appears at this time to have no further input I would suggest a survey of the membership asking for an indication of their voting intentions – perhaps a few weeks prior to the Special Resolution being put.

 

Brett has added further comments to Yon’s comments regarding Proxy voting.

Yon I should have commented further in relation to your views on proxy voting. You have referred to rule 6 which is headed 'Liability of Members" and which generally relates to the liability of a member in the event of a winding up of the association and that a member cannot transfer a right, obligation or privilege. This might be restricted to those circumstances set out in rule 6. If it is the case that the provisions extend beyond those circumstances and do in fact extend to the appointment of a proxy then it would appear that the giving of a specific proxy as opposed to a general proxy is not in contravention of the rule. A specific proxy which directs the proxy specifically how to vote on matters would not be a transfer of any right or privilege, it is a direction as to how to vote.

This issue needs to be further considered to determine the scope of rule 6.

Rule 6

6. Liability of members (1) Any right, privilege or obligation of a person as a member of the Association – (a) is not capable of being transferred to another person; and (b) terminates when the person ceases to be a member of the Association.

If possible we should clarify that 6-1-a does not extend to the use of Proxy voting.

Brett Harrison
Apr 3, 2018

Thanks Ross and Yon for your ongoing input.

I am going to try and summarise suggested amendments to date plus add some of my own comments.

1. Membership - the suggestion is that membership be defined as follows.

 

a. Residents who are currently enrolled with the Australian Electoral Commission using an address within the Territory and who are eligible to vote in a Federal or Tasmanian Election.

b. Persons who pay rates in respect of property situated in the Territory and spouses/partners of such persons.

c. Persons not included in either (a) or (b) above but who have interests in the Territory and have the approval of the Association etc etc.

This amendment (a. and b.) would ensure members would either own property within the territory or would be genuine residents.

 

2. Ordinary resolutions- the suggestion is that for an "ordinary" resolution, as opposed to those prescribed situations where a special resolution is required, should read something like " a resolution is an ordinary resolution if it is passed by a majority of not less 65% of such members entitled to vote as may be present in person at a general meeting".

 

I have used 65% s I think this was the intention even though a 65%/45% (should read 35%?) split has been referred to. Alternatively it could be 55%/45% split. Perhaps use "two-thirds" rather than 65%?

 

A further option might be to apply the special resolution requirements to all resolutions, that is not calling all resolutions special resolutions, but still requiring a vote of not less than three-quarters on all motions put in order to be passed.

 

3. Powers of the Committee

It is suggested that where the committee issues a statement without consulting membership it should be distinguished as the view of the committee as opposed to the view of the association.

I grapple with this concept. I do not believe the committee as opposed to the association has a "life of its own". As MR 23 says the "affairs of the association are to be managed by a committee of management...."

Any statement or action taken by the committee is made in the name of the association. The committee does not exist otherwise than on behalf of the association.

Woe betide any committee that abuses its position.

 

4.Attendance at meetings

Non financial members should be able to attend meetings as observers only.

 

5. Proxy voting

It has been suggested that DSRA looks at incorporating in its new rules something similar to that contained in the Qld Model Rules, as follows-

"(1)A member may take part and vote in a general meeting in person, by proxy, by attorney or by using any technology that reasonably allows the member to hear and take part in discussions as they happen.

(2) A member who participates in a meeting as mentioned in subrule (1) is taken to be present at the meeting.

 

In Tasmania the Associations Incorporation Act as opposed to the Model Rules prescribes that only members "present in person" can vote on a proposal that requires a special resolution. There is no guidance as to any other meaning to be applied to "present in person" than the literal interpretation.

It would seem possible to be able to amend the proposed rules to include something like the QLD rules for non special resolution matters. However I query whether a small association as DSRA is would be able to conveniently and effectively be able to put such technology into play.

 

We will be seeking some advice from the Office of the Commissioner for Corporate Affairs on the "present in person" issue and the whether MR 6(1)(a) is an impediment to proxies.

 

 

 

 

Ross Irving
Apr 3, 2018

Thanks for your feedback Brett

 

One comment on your suggestion:-

A further option might be to apply the special resolution requirements to all resolutions, that is not calling all resolutions special resolutions, but still requiring a vote of not less than three-quarters on all motions put in order to be passed.

This would need to be modified to allow voting by members not actually physically present at the meeting (other than for special resolutions if this is unavoidable).

Brett Harrison
Apr 3, 2018

That was an option I put forward.

Ross Irving
Apr 3, 2018

You're correct Brett - I cut and pasted it - but added a possible proviso.

robyn.moore
Apr 3, 2018

I'm concerned about two issues. Firstly, restricting membership to those on the electoral roll would exclude people who aren't Australian citizens as well as silent voters. As I understand it, permanent residents are not entitled to vote. Secondly, the practicalities of having people present-by-technology would have to be considered. While this may be feasible for a few people, if large numbers of people chose to adopt this option, how many computers/phones etc would have to be set up to accommodate them and how might this work in practice? I recognise that the principle is more important than the practicalities. On the other hand, it needs to be workable.

Brett Harrison
Apr 3, 2018

Ross the proviso would not be required as I read it. The Act and MRs specify those circumstances where a special resolution is required (as noted in proposed draft rules). If the Association were to adopt a requirement that any other resolution required the at least three quarters majority this is quite separate from the requirements of the Act for a special resolution.

Ross Irving
Apr 3, 2018

Thanks Brett - You've clarified that

Brett Harrison
Apr 4, 2018

Robyn you have probably raised a valid point about those not on the AEC roll. Are there any alternate suggestions as to how the committee might be satisfied as to whether an applicant for membership is a resident of the territory when they are not a registered property owner or the spouse/partner of a property owner?

Property owners might be asked to produce a copy of a current rates notice as evidence of ownership of property within the territory, that is pretty straightforward. However those who fit only 5a "Residents of the territory" may prove problematic to verify.

Ross Irving
Apr 4, 2018

Brett/Robyn - I have included part (b) of this clause from another Ratepayers & Residents constitution as it seems to cover the valid point Robyn has raised.

So the membership clause might read:

 

a. Residents who are currently enrolled with the Australian Electoral Commission using an address within the Territory and who are eligible to vote in a Federal or Tasmanian Election;

b, Any person residing in the Territory who is a foreign national able to provide proof, as recognised by the Department of Home Affairs, of permanent residency documentation/temporary residency documentation/recognised refugee status;

c. Persons who pay rates in respect of property situated in the Territory and spouses/partners of such persons.;

d. Persons not included in either (a) (b) or (c) above but who have interests in the Territory and have the approval of the Association etc etc.

 

 

Ross Irving
Apr 4, 2018

Robyn - your second concern is :

the practicalities of having people present-by-technology would have to be considered. While this may be feasible for a few people, if large numbers of people chose to adopt this option, how many computers/phones etc would have to be set up to accommodate them and how might this work in practice? I recognise that the principle is more important than the practicalities. On the other hand, it needs to be workable.

I think that what we should focus on is including a clause in our constitution that would allow such participation when and if we choose to implement it. Changing our constitution at some future time to allow this would be tiresome.

I have had a brief look at basic but workable (and economical) options this afternoon.

 

For a basic setup you need a conference call account. At a minimum this would be audio only. FreeConferenceCall.com is an example of a call centre that could work for us. Members participating would have to pay for their own phone calls.

We would need a computer that was connected to the internet and probably a usb/wi-fi enabled microphone. (Revolabs usb wifi microphone - approx $80). From the town hall it might be possible to access the public wi-fi.

In any case the technology is changing all the time and when you are ready to consider this there will be many solutions to consider.

 

Ross Irving
Apr 4, 2018

Robyn - you also mentioned people who are silent on the roll. I'll have to give this some thought. Their name will show on the roll but not their address. A Stat Dec stating that they live within the territory might work. Otherwise they could be covered by the Persons not included but having an interest clause. - What do you think?

robyn.moore
Apr 4, 2018

 

The membership clause is becoming increasingly complex and prescriptive. It also risks making joining the Association more onerous. Thinking about the intention of the clause and how this issue is handled in the Model Rules might give us a way to simplify things.

The intention of the first section in rule 5 seems to me to ensure only bona fide ratepayers/residents have voting rights, eg that residents who are children aren’t considered members. Up until now, I’m not aware of anyone having to prove their status as either a resident or ratepayer to join the Association. I’m also not aware of any attempt to join the Association by a ‘ring-in’. I agree though that the rules need to cover these possibilities.

The Model Rules require that members are approved by the committee. The working group suggested deleting these sections of the Model Rules. However, my feeling is that reverting to the process in the Model Rules might be a better option than attempting to enshrine the criteria for membership in the Association’s rules. The committee could determine the criteria for approval depending on the situation. This would require reworking the initial section of rule 5 in the draft. I would suggest residents & ratepayers could be approved by the committee, but others = item c in the draft – could be approved by the Association at a general meeting.

robyn.moore
Apr 4, 2018

 

Regarding electronic presence at meetings – what happens if the internet connection is lost or can’t be established? Can the meeting proceed? I suggest the rules would have to say something along the lines of the committee using their best endeavours to provide this option, but that it can't be guaranteed due to factors beyond the committee's control

Ross Irving
Apr 4, 2018

Yes - it is starting to become overly complicated and we haven't even covered body corporates, companies etc that might own property.

I agree entirely with your interpretation of the intention of the first section in rule 5 ie bona fide ratepayers/residents.. Leaving the approval to the discretion of the committee is one option.

To cover corporations etc you might consider max of 2 votes per property by ratepayer members. I also think you need a minimum age for bona fide members. Some associations set this at 15yr+.

 

Re the electronic presence I see nothing wrong with your suggestion.

 

 

yonkikkert
Apr 4, 2018

Brett summarized in part the conversation so far regarding voting:

2. Ordinary resolutions- the suggestion is that for an "ordinary" resolution, as opposed to those prescribed situations where a special resolution is required, should read something like " a resolution is an ordinary resolution if it is passed by a majority of not less 65% of such members entitled to vote as may be present in person at a general meeting".

I have used 65% s I think this was the intention even though a 65%/45% (should read 35%?) split has been referred to. Alternatively it could be 55%/45% split. Perhaps use "two-thirds" rather than 65%?

A further option might be to apply the special resolution requirements to all resolutions, that is not calling all resolutions special resolutions, but still requiring a vote of not less than three-quarters on all motions put in order to be passed. To which Ross added: One comment on your suggestion:- A further option might be to apply the special resolution requirements to all resolutions, that is not calling all resolutions special resolutions, but still requiring a vote of not less than three-quarters on all motions put in order to be passed. This would need to be modified to allow voting by members not actually physically present at the meeting (other than for special resolutions if this is unavoidable). I would like to speak more to "requiring a vote of not less than three-quarters on all motions put in order to be passed" and my reflections on this the last couple of days. The basis of this proposed rule is to encourage collaborative deliberation in an effort to build toward consensus. Implicit in that is an assumption all parties are engaged in the deliberation process actively participating in dialogue. It relies on a foundation of the engaged citizen who listens, reflects, and incorporates the viewpoint of another, in other words, " ... the type of listening required by a strong democrat...[means] in the context of democratic discourse ‘I will try to understand, I will strain to hear what makes us alike, I will listen for a common rhetoric evocative of a common purpose or a common good’ (Barber2003,175). The deliberative model relies on just that - genuine deliberation through listening, reflecting, assimilating if not tolerating the view of another. It is collaboration. It is important to note that the consensus generated is not necessarily 'thick' in that everyone agrees 100% - I believe that to be an illusion, and also, deliberation is not some utopian group-hug bullshit either, deliberation will necessarily involve a healthy contest of ideas and defensible self-interest as part of that contest. But relying on citizens engaging with the arguments of other citizens may give rise to a potential problem. The possibility of a bloc of people with an entrenched ideological position not engaging productively with the counter-arguments of the rest if at all. The possibility of 'capture' of the deliberative system to block decision making. This possibility assumes of course a more than 25% voting capacity on the part of that bloc. The problem I have been grappling with in my head in the last few days is what sort of circuit breaker can be installed to overcome this? And maybe there needs to be to be some sort of demonstrable evidence that a 'bloc' have engaged in the deliberative process to earn the right to vote. The flip side of the right to vote is a responsibility to participate in pre-voting deliberation in a meaningful way and not all people feel confident enough or are too time poor to deliberate publically either by voice or written word anyway. Can participation be measurable? I don't know. For these reasons just outlined, it may be precautionary to drop the threshold back to 66%? Or maybe the best way forward is to just trust in the goodwill and good sense of the membership that over time my concerns are proved to be unfounded.

Brett Harrison
Apr 5, 2018

Rule 5(1) as drafted already gives the committee the right to assess the bona fides of any application for membership under 5a or 5b. "Subject to the committee being satisfied that an application has been made in accordance with this rule.........."

Robyn is right I believe, the discussion on this matter has been over worked. I am content for the committee to establish its own practices and procedures for satisfying itself as to the bona fides of an applicant.

On the age issue perhaps we can add to clause 5 "that to become a member an applicant has to have attained the age of 18 years".

If we wish to consider properties owned by a company then we could add an additional "qualifier" that "where a property is owned by a corporate entity the directors of that company are entitled to apply to join the association."

This would also cover the situation where a property is owned by a trust with a corporate trustee and where a property is owned by a SMSF with a corporate trustee. Where a property is held by a trust with a non corporate trustee the property would be registered in the name of the individual trustee(s) and they would be entitled to join under existing 5b.

As for a body corporate applying for membership we may not need to consider this unless someone can advise that the likelihood of strata titles issuing for any of the current lots in DS or Cambria Drive is possible. Even if that were to be the case in the future strata titles would issue and would be held either by individuals or in the name of a company. The former is already covered by 5b and the latter by proposed amendment in relation to titles held by a company.

On the present by technology suggestion can we wait until we get advice from Corporate Affairs as to their interpretation of "present in person" before we consider further.

Brett Harrison
Apr 5, 2018

Just for clarification my reference to a SMSF (self managed super fund) does give rise to an interesting conundrum. Under the applicable legislation the beneficiaries of a SMSF cannot occupy property owned by the super fund. This would then mean the fund via its trustee could be eligible for membership of DSRA but the beneficiaries of the fund could not be classified as residents! Cheers

New Posts
  • akswan
    Jun 16, 2018

    I propose the following amendment to the DSRA Draft Rules of the Association: Clause 4, Objects and purposes of Association to include: To protect and preserve the flora, fauna, natural landscape and aesthetic beauty of the Territory. Your comments will be appreciated. Regards, Alan Swan RA 442 14 April 2018
  • Brett Harrison
    Apr 1, 2018

    The draft of the proposed new rules is out there for membership consideration. Is this forum and perhaps an online survey sufficient for members to be able to express their comments/views on the proposed new rules? Should there be an opportunity for interested members to be able to attend a meeting to consider in detail the proposed rules? Comments/feedback would be appreciated. One specific issue that I should have mentioned at yesterdays GM is the amendment to the definition of "Territory" to include residents of Swan River Rd. This amendment arose as a result of an enquiry from a Swan River Rd resident as to whether they could join DSRA.
  • yonkikkert
    Mar 30, 2018

    When drafting a constitution are rules written 'if the model rules allow' or if the Associations Act 1964 allows . I feel it's very important to clarify this because there seems to be a lot of confusion out there about this question including myself. As far as I understand it, the model rules do not 'allow' anything. They are a guide and a default set of rules if the constitution of an association is silent on a matter. The Associations Act 1964 states in Section 16 : (2) An association that is proposed to be incorporated under this Act, or that is incorporated thereunder, may, by special resolution, adopt as its rules all or any of the model rules or may so adopt the model rules subject to such modifications as are specified in the resolution. (3) Where an association is incorporated under this Act, in so far as any rules lodged, pursuant to section 7 , with its application for incorporation are not inconsistent with or do not exclude or modify the model rules as then in force, the model rules shall be deemed to form part of the rules of the association in the same manner and to the same extent as if they were contained in the rules so lodged. Therefore, as I read it, an association can write a constitution that suits them as long as it complies with the Act and not necessarily the model rules. But I may be under a misconception. After reading the Associations Act, which is heavily commercially focused, there is nonetheless remarkable room for creativity within it for associations to tailor make constitutions according to the communities need. I suspect it may have been written that way for precisely that reason. I am in no way implying criticism it's just something to keep front and centre in our thoughts as we go forward but I'm not sure why we seem to be so closely sticking to the MR's if we are free to amend them as we see fit as long as the amended rules are consistent with the Act. If the Act is silent on a matter then we are free to create what suits us. This is important in seeing the bigger picture of how we approach all this drawing up a constitution and leads to the question regarding the MRs: Does the community wag the tail or does the tail wag the community? I would hope for the former. Roses are red and green leaves are green there is no way to see them any other way than the way they always have been seen. But I see all the colours of the rainbow...

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