Q. The constitution of our club requires a quorum of sixty members for annual general meetings and extraordinary general meetings.

The constitution states that members are to be of age six and above; however, the constitution also specifically excludes members under age 18 from voting. It therefore seems to me to be morally incorrect to include those under age 18 in the quorum. What is the legal situation?

A. Such provisions seem bizarre as well as immoral.

The whole purpose of prescribing a quorum is to ensure that decisions are made by a reasonable number of persons eligible to vote. Under the rules that you describe it would be possible to have a valid meeting of 60 non-voting members - a meeting which would then be unable to transact any business. And how democratic would a meeting of 59 non-voting members and one voting member be?

It is understandable that an adult organisation would not wish to have six-year-olds making decisions, but in that case counting these persons in the quorum would not make sense.

The legal position is as follows: While rules against public policy would be void, being stupid is not against the law. If an organisation sees fit to have absurd rules then the courts would regard this as a purely internal matter and would most probably not interfere.

Q. Is there a standard for the election of the Chair of a body? Should such an election be by the board of the body or by its members?

A. Organisations can draft their rules either way.

For smaller organisations such as local sporting clubs it is common to let the members vote directly for their president and for the holders of other executive positions. This is regarded as more democratic. It makes sense where most of the voters know the candidates for office personally.

For larger organisations such as listed companies it is common for members to elect members of the board and for the board then to elect one of their number to be the Chair. It is felt that this approach produces the most useful result, as the members of the board would be in a better position than the membership at large to choose the best person for the job and to identify a person with whom the rest of the board can work effectively.

However, there is no universal standard and no single "right" way to deal with the matter.

Q. A paid employee of an incorporated voluntary association has been moving motions at annual general meetings and executive meetings of the association.

The employee concerned is not an elected or appointed member of the executive of the association and is not recorded as a member of the association. Furthermore, the motions are ones in which the employee could be considered to have an interest.

Is it appropriate for the employee to be moving motions under these circumstances? The constitution of the association appears to be silent on this.

A. What you describe is certainly most inappropriate, but several separate aspects need comment:

"Office-bearers who have any direct or indirect interest in any contract or proposed contract with their organisation should declare their interest to the committee and should, unless the rules provide otherwise, leave the room when the matter is under discussion or being voted upon. Both their declaration of interest and the fact that they were not present during consideration of the matter should be recorded in the minutes.

"Rules can, of course, be drafted to permit office-bearers to remain in the room after disclosing their interest, either with a requirement to refrain from voting or, if desired, with normal voting rights and the right to be included in the quorum. However, having regard to the emotions which can arise on many such occasions and the need to consider personalities, it seems better that an interested party should not remain present during the debate and vote.

"Such a procedure will:

(1) facilitate frank discussion amongst the disinterested office-bearers;

(2) minimise embarrassment both to the interested office-bearers and to those who might wish to oppose them;

(3) reduce the chance that the interested office-bearers' mere presence might intimidate the others;

(4) deny the interested office-bearers an excessive debating advantage;

(5) enable justice to be both done and seen to be done."

At general meetings, as distinct from committee meetings, it is usual to allow members with a vested interest to exercise their normal rights as members, notwithstanding the conflict.

Q. Some people voted at our AGM while not financial, as required by our constitution. Does that make the meeting null and void, even though those votes did not determine the outcome? Our main concern is that these people may have influenced others to vote a particular way.

A. Your concern that "those people may have influenced others" is justified, but persons vote a particular way for many reasons and it would not be practicable to look into these.

The meeting would not be void. In fact, even the result of the vote under discussion would not be void unless fraud on the part of the Chair could be established or the result was defective on its face (for example, if the total numbers announced exceeded the number of members).

Thus, even if the votes of the unfinancial members had altered the outcome, a declaration of the result which was not challenged at the time would normally have to stand, although steps to rescind a passed motion or to reintroduce a failed motion could, of course, be taken later on, subject to the rules.

For a fuller discussions, see paragraphs 2.98 to 2.99 and 8.26 to 8.28 of Volume 2.

Q. In paragraph 12.147 of Volume 2 it is stated that unless the rules provide otherwise ex officio members have full voting rights. If the constitution of an organisation does not mention how many persons can be ex officio members is this comment still valid?

A. Ex officio members do not exist unless they are mentioned in the constitution, usually in terms such as: "The immediate past president shall be an ex officio member of the committee." There is thus no need to mention a figure.

Q. At an annual general meeting a resolution was passed to make a particular officer a full member of our executive and a new rule was added creating a sub-committee with all power being given to that sub-committee. Can these thus be classed as ex officio members of our executive?

A. The resolution would make the officer a co-opted member, not an ex officio member. Presumably there is a power of co-option in the constitution; if not, the resolution would be void.

The status of the sub-committee would depend on the precise wording of the rule. The words "ex officio" are not essential, but the use of the term "sub-committee" would imply that its members are not members of the parent executive. If they are to have voting rights then this would need explicit words in the constitution.

Q. The Chair of our organisation claims that he has the right to terminate the membership of one of our members simply because he is empowered to do this under the <Associations Incorporation Act>. Is this really correct?

A. Expulsion is a very serious step. Constitutional provisions must be followed very precisely. Natural justice must be followed - for example, the member concerned needs to be given details of any alleged offence and a right to be heard. The action of the Chair in purporting to expel a member is clearly void. It also leaves him open to be sued for defamation.

Q. A member of our organisation who was expelled recently challenged this decision in court. The court found, in the circumstances of that case:

The court ordered, inter alia, that the purported expulsion of the member was null and void.

However, the bitter dispute which led to the expulsion has not been resolved and the committee which was responsible for the problems remains in office despite some strong criticism by the court. What further litigation should now be instituted?

A. In cost/benefit terms it does not seem worth while to spend any more time, money and effort on litigation. It is obvious that the incumbent committee needs to be removed, but this is best done at the ballot box. This can happen if those who seek change can get candidates of the right calibre to stand for office and can get the numbers. This would also be the strategy least damaging to the organisation.

Publicity may help - the strong language in the judgement could get one or two journalists interested. Whenever anything is written in the course of any campaign the words should be carefully chosen and the message made self-sufficient, with its later publication in the press clearly in mind.

Q. What is the correct procedure for the role of a scrutineer at an AGM? I belong to a local organisation and the committee have asked me to take the chair for the AGM.

A. Scrutineers work behind the scenes when votes are counted, usually on behalf of a candidate for election, to ensure the accuracy of the count.

Constitutions usually specify who is to chair an AGM. The duties of a Chair are set out in detail in Chapter 3 of Volume 2. The main task is to call on speakers in accordance with the Standing Orders.

Q. Can organisations be held accountable for non-compliance of their own constitutions?

A. Office-bearers who act contrary to the constitution of their organisation could be taken to court, but this could be very expensive.

You might like to consider some of the following alternative devices:

Q. The present committee of our organisation has the support of about 60 per cent of the membership, but it persists in completely disregarding the contrary views of the remaining 40 per cent.

The committee is intent, despite protests, on throwing away the bulk of our modest accumulated funds on a project which seems doomed to failure but which would provide certain benefits to the leadership. Furthermore, the proposed expenditure seems to be beyond the powers contained in our constitution.

How can the committee be stopped?

A. It seems likely that any legal battle to get around this problem would cost more than the assets concerned were worth.

Mass resignations by members of the 40 per cent minority and its supporters might not be very palatable, but it would allow them to form a new organisation and to devote their energies towards making that a success rather than continuously banging their heads up against a brick wall.

Such a course of action would also enable them to get some useful publicity. For example, they could issue press releases which

and so on.

The authorities might also be more inclined to intervene if the media get interested.

Q. Our organisation has a regular agenda item "Correspondence", at which letters received by post since the previous meeting are considered. However, these days we also receive messages by e-mail. How should we treat these?

A. Correspondence is not defined by reference to the mail officer. Correspondence can also come by hand delivery, by fax, by e-mail or possibly by some future mechanism not even thought of today.

Some e-mails may look sloppy, but these days a valid legal contract can be constituted by an exchange of e-mails.

So certainly if your organisation would regard something as correspondence if it bore a 50-cent stamp then it should not discriminate against it just because it arrived on a computer instead.

Q. In a community organisation, is it in order for the secretary to open <all> mail addressed to the organisation even where it is addressed to another official although not specifically marked "Private and Confidential"?

A. This is not a black and white issue. Custom and balance of convenience come into it. The following protocol is suggested:

- an invitation in a newsletter to send responses to such a person

- fact that the addressee is overseas and that not dealing with the mail would cause an undue hold-up

- begging letters addressed to former office-bearers, where the sender's ignorance of the current position is strong evidence that the addressee is not really known to the sender.

Q. Is the seconder of a motion obliged to speak in favour of that motion or may he or she speak against it, when the seconding was not pro forma?

A. The right of movers and seconders to change their minds when voting, especially if they become convinced by the counter arguments and/or if the motion is amended out of all recognition, is dealt with in paragraph 8.24 of Volume 2.

Although not specifically spelt out there, the seconder (who, unlike the mover, may not have spoken already) is certainly entitled to speak against a motion even if it has not been seconded pro forma.

However, as a courtesy, the seconder should alert the Chair in advance if he or she intends to do this, to enable the traditional alternation of speakers for and against to be maintained.

Q. If the constitution of an organisation requires, say, 21 days' notice of motion for a change to the constitution by special resolution, can an amendment to that motion be accepted by the Chair on the night of the meeting? If "yes", does the vote to accept the amendment need to be 75 per cent plus or can it be just 50 per cent plus of those voting?

A. While not all authorities agree with the following view it seems highly desirable that amendments to a motion on notice should be permitted, provided only that their passage would lead to an intermediate position between passing and rejecting the original motion.

The detailed reasons for this are set out in paragraph 5.6 of Volume 2:

"Some authorities maintain that a motion on notice must be either passed or defeated in its original form, and that amendments cannot be proposed because the only notice given referred to the original wording. Such a stand would produce the absurd situation that the two extreme positions - complete acceptance `white' or complete rejection `black' - would be allowable, but an <intermediate> position - say, `grey' - would not be. Yet such an intermediate position (that is, the motion embodying a suitable amendment) might be a compromise much more acceptable to the meeting than either of the two extremes. Alternatively, it might just be an improvement on the original proposal. If amendments are not allowed then these alternatives cannot be tested and the meeting may have to either settle for an inferior solution (by carrying the original motion), or reject the proposal in the hope (not necessarily achievable) that on another occasion a more satisfactory form of wording might be put up. While a further meeting could, of course, always be called for this purpose, this would normally involve additional inconvenience and expense, with no guarantee that a similar problem might not arise on the second occasion. In any case, it seems undesirable to force those merely wishing to improve a motion into the position of having to either totally oppose it, thus risking (even inviting) its complete defeat, or totally accept it, thus making likely its passage with known imperfections. If a motion cannot be amended then the only course of action available to some people who might not fully agree with the wording would be to vote against the whole motion, and this would obviously be in the interest of nobody. To sum up, it is illogical to deny a meeting any opportunity to consider a material and relevant alternative to a question under discussion. The purposes of the notice convening the meeting are to inform members of the subject matter to be discussed and to give them an opportunity to be present. These purposes are in no way defeated by allowing amendments within the scope of the notice. It would, of course, be quite impractical, in most cases, having regard to the usual timetable between the issue of a notice of meeting and the date of the meeting, to require notice to be given of any proposed amendments."

As regards the query in regard to the majority required, only the final vote needs to be passed by the special majority specified in an organisation's constitution. Amendments can be carried by a simple majority (50 per cent) in the usual way, as passing them does not by itself lead to any change in the constitution.

Q. Do two-thirds of the members have to agree to allow discussion before a procedural motion to rescind a substantive motion can be entertained or can such procedural motions be moved at any time by any member?

A. Subject to any rule to the contrary, a rescission motion can be proposed at any time that there is no other question before the chair. However, because such a privilege can be abused, some organisations provide in their standing orders that such motions can be moved only at the discretion of the Chair or alternatively only with the consent of a specified majority of those voting. That majority could but does not need to be two-thirds.

One purpose of such a provision would be to stop those who had been against a proposal which had been adopted from frivolously trying to recanvass the issue, perhaps ad nauseam. Another would be to stop members from taking unfair advantage of the absence of supporters of the original proposal who were unaware that a rescission motion was being contemplated.

Of course, quite apart from the above considerations, a Chair should not accept a rescission motion if its passage would serve no purpose - for example, if such a motion sought to withdraw authority for the incurring of some expenditure when the relevant transaction had already been carried out.

Q. Your name was quoted at a recent committee meeting by our president, who announced that in future any motion passed by our committee would be relevant only for the current year and that, at the end of that year, all motions passed prior to the beginning of the new year would be regarded as of no effect.

As I have never been on a committee functioning in that way, I searched the local libraries and bookshops to find the source and exact wording of the statement he purported to quote, but without success.

A. The following principles may assist:

Q. Can a rescission motion itself be rescinded?

A. A Chair faced with a motion seeking to rescind an earlier rescission should use the discretionary power vested in all presiding officers to rule it out of order.

A rescission motion once carried has the effect of restoring the position which existed immediately before the rescinded motion was passed.

If the organisation desires to adopt the relevant proposal after all then it can easily achieve that object directly by passing a fresh motion, either in the same form as the rescinded motion or in a different form. This would need to be done at a subsequent meeting - see paragraph 4.53 of Volume 2.

To allow the rescission of a rescission motion would serve no useful purpose and would certainly be confusing to those attending the meeting. It would also make the consideration of amendments very messy.

Furthermore, it could open up the way to have further rescission motions of rescission motions ad infinitum. Such an idea should not be entertained.

Q. How much detail about the discussion leading to the vote on a motion should be included in the written minutes that are presented for adoption?

A. At one extreme, minutes can record just the words of any motion or amendment voted on and the result of that vote, preferably together with the names of the mover and seconder. This is the minimalist position.

At the other extreme, minutes can record also the debate verbatim - a virtual <Hansard>.

Most organisations use minutes of the former type, which is certainly easier for the minute secretary.

However, it is good practice, in the case of motions which have been amended during the course of the debate, to set out both the original wording (at the start of the entry) and the final wording (at the end of the entry).

Some organisations also include a summary of the key arguments which were advanced for and against, with or without the names of those who made them. This is useful if a report of the meeting needs to go to a wider audience.

However, such a summary requires editorial choice and this can pose some problems in practice:

Q. In paragraph 2.14 of Volume 2 you say, in relation to the motion to confirm the minutes of a previous meeting: "The motion need not be moved or seconded by persons who were present at the meeting concerned, although such a course is preferred".

This view leaves me dissatisfied and having the feeling that the determination is inconclusive and may be taken in the interests of expediency.

Your comment is certainly not in dispute and I accept that it was probably given in good faith, but I can't see how a non-attendee can move that the minutes are a correct record if he or she was not present at that particular meeting.

A. The following points can be made:

Q. There seems to be a difference of opinion in relation to corrections made to the minutes of meetings of my organisation.

I circulate minutes in draft. Should an error be pointed out at the confirmation stage it was my practice to record an appropriate amendment in the minutes in the next meeting.

It has been suggested that the correct way to deal with these aspects is as follows:

What is the best way to deal with such incidents?

A. The precise way to deal with the aspects you raise is largely a matter of taste, but the following analysis is for those preferring simplicity:

Draft minutes can be labelled "Draft Minutes" or "Draft Minutes subject to Confirmation", but this is not essential where their nature is obvious from the context, as when they are attached to a notice of meeting which includes their confirmation as an agenda item.

The motion for their confirmation, usually at the next meeting, should itself be recorded in the minutes of the confirming meeting in the same way as for any other motions.

Similarly, any amendments to the confirming motion dealing with corrections should be recorded in the same way as for amendments generally.

Then the motion becomes: "That the minutes as circulated and as amended be taken as read and confirmed" or something similar. However, if the desired change is simple and non- controversial then the Chair can dispense with requiring a formal amendment from the floor and can just put such a motion to the meeting.

Either way, the minute book copy of the minutes should have any passed amendment inserted in manuscript and initialled by the Chair signing the minutes as a correct record.

Alternatively, in this word processing age, a clean copy of the minutes incorporating the passed amendment could be produced. This can then be signed by the Chair as the official record.

See also paragraphs 2.14 to 2.23 of Volume 2.

Q. In the course of a lengthy debate one of our members moved: "That the question be now put." The Chair immediately announced that the closure had been moved and promptly put the original motion (not the procedural motion) to a vote. Was that correct?

A. Clearly not. The Chair obviously felt that there had been sufficient debate and should thus have accepted the procedural motion and put that motion to the vote. This would have allowed those who would have preferred that the discussion should still go on the opportunity to vote against the closure.

The debate on the original substantive motion should be terminated only if the procedural motion is voted on and carried, but even then the vote on it should not be taken until after the mover of it has, if desired, exercised his or her normal right of reply.

Q. I am to chair the AGM of a residential body corporate shortly and wish to ensure that the meeting is conducted in an orderly fashion. In previous years there was no control and everyone kept talking at once across the table and the agenda was mainly ignored. Even arguments between individual owners across the table were allowed.

Whilst I know how a meeting should be run (and have run many over the years without difficulty) this upcoming body corporate meeting is going to be a real challenge. This is because a few of the owners like the sound of their own voice and do not accept any authority at all.

How do I shut them up? I was planning to threaten to adjourn the meeting for a week if I could not maintain reasonable order but the local government office for body corporate matters told me that there is no legal provision for me to do that.

Have you any ideas which would help me?

A. The circumstances that you describe are not all that unusual, although you might be under more strain than most presiding officers.

Your members have got into bad habits and clearly need to reform. In your favour is the fact that they are not acting maliciously or capriciously and have a genuine interest in protecting both their assets and their lifestyles.

Some ideas:

Q. At a recent meeting of our organisation, the president made the following statement:

"For all future meetings it will be a requirement that all motions be put in writing to be received by the secretary no later than seven days before the meeting date, to allow for investigation. Any motion put forward at a meeting will be listed for discussion at the next meeting."

This was relating to any motion which was going to involve a discussion lasting more than 10 minutes.

Could you please advise whether this is legal meeting procedure.

A. The following assumes that the constitution and standing orders are silent on this issue.

The concept itself is not illegal, but it would need to be a decision of a meeting, not simply an edict of the president.

Of course, even a decision of a meeting could be rescinded later on. Alternatively, a meeting could give permission for a different procedure on a case-by-case basis.

For the "motions in writing" aspect, see paragraph 4.19 of Volume 2.

As regards "any motion which was going to involve a discussion lasting more than 10 minutes", if this aspect is desired then it would naturally need to be incorporated in the procedural motion.

Q. We have two controversial motions listed for discussion at our next meeting. A letter from a member to the president was received less than a week before the meeting at which these are to be considered. It challenged the right of persons to join and become financial for the first time immediately prior to the meeting and then to take part in the vote.

Our membership register is updated shortly after each meeting, rather than immediately before the next meeting.

It seems unreasonable to require potential members to attend the meeting before the one dealing with the controversial business, simply so as to acquire the right to vote at it. Attendance and participation is difficult enough to ensure, as people tend to come only when there is something that interests them.

The counter-argument is that allowing people to join at the last minute amounts to stacking the meeting.

We have no formal constitutional rules or by-laws which address this matter.

A. In the absence of rules specifically preventing this, eligible persons are able to join an organisation at any time.

Similarly, in the absence of rules requiring membership for a specified minimum period, eligible persons are entitled to vote as soon as they become financial members.

The procedures being used to update the membership register have no bearing on the rights set out above. Of course, if these procedures caused administrative difficulties then it would be desirable to bring these procedures into line with the voting requirements, not the other way round.

Organisations which are concerned about "stacking of meeting" aspects need to amend their constitutions accordingly. But, of course, in the circumstances you describe stacking could be initiated by both sides of a debate and in the end decisions will follow the number of votes cast by financial members who are interested enough to be involved - which is as it should be.

Q. I have been asked to assist a committee of which I am not a member by chairing a meeting at which some members are seeking to get rid of the Chair by using a vote of no confidence.

How should I chair such a meeting for them, bearing in mind that I need to consider the interests of all concerned.

Can I even chair such a meeting? If so, what is the correct procedure?

A. It is not unusual for an independent person to be asked to chair a meeting in circumstances such as you describe. You can certainly chair the meeting if the meeting passes a motion to that effect. As a non-member you would, of course, have no deliberative vote.

Paragraphs 12.70 to 12.81 of Volume 2 may assist you.

Once you are in the chair in this temporary capacity and someone has moved the motion of no confidence in the normal Chair you might wish to lay down some ground rules for the debate, preferably with the concurrence of the meeting - for example, in regard to the number of speeches per side and the length of these.

The person who is the subject of the motion should be guaranteed the right to speak at a time of that person's choosing between the seconding of the motion and the mover's speech in reply at the conclusion of the debate.

The mover of the motion and the person who is the subject of the motion could, if desired, be given greater speaking time limits than the other speakers.

At the end of the debate you should conduct the vote very carefully. The meeting might or might not want to vote by secret ballot.

Q. Do the mover and seconder of a motion have to be persons who are eligible to vote at the meeting?

A. It is fundamental that, unless the rules specifically state otherwise, the right to vote includes the power to attend and to participate in a meeting in all related capacities - for example, to speak, to move and second motions and amendments, to nominate persons for election, to call for a quorum, to take points of order, to call for a division or poll, and so on.

Correspondingly, a person without the right to vote is unable to do any of these things.

However, there are ways of getting round this limitation in practice. For example:

If this is an ongoing problem then, of course, the rules could be changed or the person concerned could join up as an ordinary member.

Q. At the AGM of our organisation certain positions are declared vacant. If a position is not filled, does the incumbent remain in that position unless he or she formally resigns?

A. The rules of most organisations provide that certain positions become vacant automatically at the end of an AGM. The "declaration" is just a courtesy to keep the meeting informed and there is no need for incumbents to resign. If there are no fresh nominations then a casual vacancy arises.

Some organisations provide in their rules that existing office-bearers are deemed to have renominated unless they indicate otherwise. In such cases, of course, if there are no other nominations then the incumbent would automatically be re-elected for a further term.

Q. At a special meeting of our organisation a decision was made to spend a considerable portion of its funds, but the members were not given the entire story. In the circumstances, is this decision binding?

A. If the meeting was valid then the decision would have been binding. But if fraud was involved then the matter should be reported to the police. In addition, the committee members involved could be voted out of office either at the next election or at a meeting called to declare all offices vacant.

Q. What is the procedure for having an issue discussed at an annual general meeting?

A. If a member of an organisation wants the discussion to lead to a particular decision then that member should draft a suitable motion and ask to have it included on the agenda.

In other cases, the matter can be raised when an item such as "General Business" or "Any Other Business" is reached, usually as the last item on the agenda.

Alternatively, a member could circulate a discussion paper canvassing the issues that are of concern and then give notice of a motion such as: "That the paper on ... dated ... prepared by ... be noted."

Q. Does a proposal by an incorporated association to spend a very large sum of money on a project require an ordinary or a special resolution?

A. The legislation requires special resolutions only for serious matters such as a change of name, a change of rules, mergers and winding-up. Unless an organisation's own rules require a special resolution for the matter one will not be needed.

Q. I have always understood that the Chair of a meeting may not move motions or vote on them except to maintain the status quo. The current president of our organisation claims that, in taking the chair at meetings, he is being discriminated against because of his loss of voting rights. He claims that he has a legitimate vote as a member. Could you clarify this issue for us?

A. It is undesirable for any Chair to move motions or to cast deliberative votes because such actions prejudice his or her reputation for impartiality. Exceptions are in relation to motions adopting reports by the Chair in the capacity as president of an organisation or in committee.

Whether the person presiding over a meeting actually has the legal right to move motions or to cast deliberative votes depends on the precise wording in the constitution of the organisation concerned. If that wording gives that right to every member then that would technically allow that person, if a member, to exercise that right.

The question of preserving the status quo refers to a different aspect, namely the resolution of deadlocks. Again, this is primarily a matter for the constitution - there is no casting vote at common law. If the rules provide for one, then it is preferable for it to be exercised in favour of preserving the status quo so that the matter can be dealt with again later on if desired.

When it comes to drafting the rules, the conflicting factors which bear on the question of whether the member actually chairing a meeting should have a deliberative vote - as distinct from a casting vote on an equality of voting - can be analysed as follows:

If a person in the chair feels discriminated against by not being morally or legally free to participate in a particular debate then it would seem preferable for that person to vacate the chair before the debate starts.

Q. Why do you think Toastmasters International follows Robert's Rules and not yours?

A. This question refers to the well-known work of United States General Henry Martyn Robert (1837-1923). The first edition of "Robert's Rules of Order" was published in 1876 and set out to codify meetings procedure in the United States and to encourage uniformity in that country.

Organisations based in the United States are always parochial, but in any case Robert's book was around long before Renton (1931-) was even born.

Q. Our secretary has drafted the following motion:

"That Council be given approval to proceed with the re-development of the Clubhouse and surrounds, as set out in the brochure forwarded to members on ..., at an estimated cost of $5 million and subsequently modified in accordance with the Captain's letter of ... and the authorisation to borrow a sum not exceeding $3 million, to build in accordance with the developed plans and Council be given approval to proceed with the redevelopment with a contingency of 5% on the Capital Cost ($350,000)."

However, the wording seems hard to follow and this may cause members to vote against the motion. How could it be improved?

A. The following might be clearer:

"That Council be given approval:

(a) to proceed with the redevelopment of the Clubhouse and surrounds, as set out in the brochure forwarded to members on ... and as subsequently modified in accordance with the Captain's letter of ..., at an estimated capital cost of $5 million

(b) to borrow a sum not exceeding $3 million to carry out these works in accordance with the development plans

(c) to incur, if necessary, further costs up to a maximum of five per cent of the estimated capital cost, namely, $250,000."

Q. As you are obviously well versed and well respected in this field, how about producing a model set of meeting procedure rules and standing orders which clubs such as ours could either adopt in toto or adopt with appropriate amendments.

For instance, last year we had a situation where, following the moving of a motion at a general meeting to change a by-law, a member immediately gave notice of motion to virtually revert to the status quo.

A. Chapter 10 of Volume 2 of the book does precisely what you are asking for. It includes a complete set of suggested standing orders and samples of others which could be used according to taste.

Your example uses the word "immediately". The Chair should clearly have ruled such a notice of motion out, as contradicting a motion just passed.

Q. At our public speaking club there has been recent discussion as to whether or not a part of a meeting may be chaired by any floor member of the club.

Our constitution states: "In order to carry out its mission, this Club shall (amongst other things) increase its individual members' knowledge of the rules of parliamentary procedure and their skills in conducting meetings."

However, our constitution also states: "The president (or in his absence the next highest ranking officer) shall preside at all meetings of this Club."

This would seem to prevent ordinary members getting experience in the chair. Given the specific nature and intent of our organisation, is there a way around this?

A. Your Club's main purpose is to give training in all aspects of public speaking, so to deny members the opportunity to gain practical experience in chairing meetings would not seem to make much sense.

All that is needed then is a formula that fits in with your existing constitution - although, of course, that document could no doubt also be amended if it no longer suits the current circumstances.

How about adjourning the formal meeting before the start of each training session and then opening an informal meeting? This informal meeting would be governed by common law and could then choose its own chairman and conduct its business as it saw fit.

When that business has been concluded the adjourned formal meeting could be resumed.

Q. Yesterday, the newly elected board of our club met for the first time, as our constitution says that they must meet to determine who amongst them will be the Chairman and Deputy Chairman for the ensuring year.

Before the meeting was able to be officially opened, one of the directors said he had a statement to make and insisted that it be made without the tape recorder on. (The minute secretary normally uses a tape recorder to help her to transcribe the meeting accurately.)

He proceeded to make some very derogatory remarks about the previous board and management, and raised issues mostly concerning financial matters of the club that he had had every opportunity to raise previously. He refused to let anyone else speak when members attempted to address the issues he was raising.

Once the meeting was officially underway, he nominated himself for the position of Chairman. This went to a secret ballot and the voters elected someone else. He did not nominate for the position of Deputy Chairman.

The newly elected Chairman asked this director to sit on the finance committee for this new year, but he declined. He said that he felt that his opinions would not be listened to, even though the Chairman reassured him that he wanted all directors to be actively involved in voicing their opinions whilst he was Chairman of the Board.

A. As the speech was made before the meeting opened it should just be disregarded.

The person who would have conducted the election for a new chairman should have just told the speaker to sit down. He could also have suggested that the complaint should be put in writing, with a copy sent to the auditor.

Subject to its rules a board can conduct its business as it sees fit. Thus it could, if it wished, go into a secret unminuted session - but the fact that it did so should itself be minuted.

The fact that matters could have been but were not raised on an earlier occasion is not in itself a bar to their being raised later on, but such a delay would naturally reduce their credibility.

Of course, a meeting can if it so wishes also resolve that a speaker be no longer heard.

Those aggrieved by the remarks described above might have a right to sue for defamation.

Q. In counting the numbers present at an AGM does Mary Smith (a member) who has a proxy for Joan Brown (an absent member) count as one person present or as two for the purpose of deciding whether a quorum is present?

The following extracts from our constitution may be relevant:

"Rule 23(2). No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. For the purposes of this rule `member' includes a person attending as a proxy or representing a corporation which is a member."

"Rule 25(6). A member may vote in person or by proxy or by attorney and on a show of hands every person present who is a member or a representative of a member shall have one (1) vote and in a secret ballot every member present in person or by proxy or by attorney or other duly authorised representative shall have one (1) vote."

A. Normally proxies are not counted in the quorum - see Volume 2 of the book, paragraph 2.14, Note (4), and paragraph 11.19(b), Note (11).

Your organisation's Rule 23(2) departs from the normal pattern by defining "member" for the purpose of calculating a quorum as including a person - here meaning a non-member - attending as a proxy.

However, a member who is also proxy does not suddenly get two heads. The purpose of having a quorum is to allow decisions to be made using the intellectual contributions of a minimum number of different persons. It would be absurd to regard a member who holds proxies for 100 other members as being 101 persons.

Rule 25(6) deals with voting rights, but this is a different concept from the concept of a quorum. However, a constitution could, if desired, define a quorum as persons representing a particular percentage of the total votes.

Q. My wife is the vice-president of our organisation and I am its secretary. Of late we have suspected that the president, the treasurer and another committee member have been using their positions for personal financial gain.

On several occasions they have been asked to produce financial statements but have refused.

The minutes are a shambles. The minutes have been read out, but have not been confirmed or signed.

A motion of no confidence in the committee was moved and seconded at our last meeting, but the Chair refused to entertain the motion.

We have now called for a meeting where we can officially deal with the motion of no confidence and seek an election.

Is there a better way to clear up this awful mess?

A. If fraud is being alleged then the police should be informed.

Leaving that aside, the best approach might be to ask the other side for a meeting chaired by an independent chairman at which a motion to declare all offices vacant can be dealt with.

This might be less inflammatory than a no confidence motion and would probably lead to one side or the other getting a clear mandate.

Q. I belong to a group which has formed an association. There are certain things which I do not believe they are going lawfully. Are non-members allowed to attend meetings? The notice of a meeting specifically indicated that the meeting was for members only. If a non-member attends, does the association have the right to refuse him entry?

A. The right to invite persons onto premises belongs to the owner of the premises concerned or to those who derive their occupancy rights from the owner as tenants or licensees. Thus if the organisers of a meeting have hired a meeting room then they can invite whom they please and refuse entry as they see fit. The position is no different to teenagers trying to gatecrash a party being held in a private home.

Obviously, owners of a building can also invite persons in on some occasions but not on others.

Q. One of our friends' membership was cancelled. When he made an application to appear and called for a special meeting so that the body of the association could discuss this cancellation he was refused and his request went unactionable.

A. If the cancellation of membership was done in accordance with the rules then the former member has no greater rights than any other member of the public. If it was not, then he is still a member and can exercise all rights available to members.

Requests for special meetings usually need to be made in accordance with specific provisions in the rules.

While it would be courteous for the organisers to give your friend a chance to put his side of any argument, in the absence of very specific rules to that effect they are under no duty to do so.

Q. Are the non-members able to get a number of members to sign a petition asking that the non-members be allowed to attend the meeting?

A. Petitions can be a useful tool in a public relations battle - but they are all too easily ignored by those to whom they are addressed.

Q. I have handed a discussion paper to our secretary to be added to our AGM agenda. She became very upset with me as I wanted to have a copy sent out to all our lady members before the AGM and she said to me that this can be done only on the day. Is there a correct way to do this?

A. In the absence of rules you would have no automatic right to make the secretary send out your material. But neither would this be prohibited.

Your secretary is probably concerned with the resources your request would require. You might resolve this by stuffing envelopes yourself or paying a mailing house to do it.

Q. At our club's last AGM the returning officer informed the members at the meeting that the scrutineers and he himself as returning officer had the right to vote if and when two or more nominations were accepted for a position. In past years it has been noted that scrutineers were unable to vote and that the returning officer had the right to vote only if the votes were tied. Which is correct?

A. The returning officer and the scrutineers would have voting rights only if they were members (unless your constitution was unusual and had a different provision).

As regards the casting vote on an equality of voting, the returning officer would normally decide the winning candidate by lot and not by casting a personal vote.

Q. The following was recently suggested to our executive:

"The usual tradition of calling for a mover and seconder is surely redundant for motions on notice. These are admitted to the meeting in advance by the secretary on behalf of the executive (approving them as in order, not defamatory, and so on) and then circulated to those attending. They thus need no further proposer or seconder to get them deliberated by the meeting."

Would that not be a sensible reform?

A. No. The mover of a motion has two important roles:

Thus for any motion of significance a mover is really essential.

At common law no seconder is required. Furthermore, from what you say, a seconder would not really be required by your organisation, as it often is in other places, as a means of filtering out frivolous proposals. Nevertheless, it is often useful to have a seconder who can complement the information supplied by the mover.

Q. We are an unincorporated club. In our club rules it states that the quorum for the AGM is double the size of the committee plus 1. The committee consists of four office-bearers and three ordinary committee members. In my book that means that the quorum is 15. Is that a correct interpretation?

A. Yes.

Q. We know that we are not going to get 15 financial members at the meeting. Does the quorum have to be 15 members or would it be sufficient for just 15 people to attend the meeting but with only the financial members able to vote?

A. Only financial members can be counted for quorum purposes. Any other persons present would have to pay subscriptions before the meeting starts.

Q. As we are unincorporated is there any legal standing to our rules or can they be changed at any time if the members agree?

A. Presumably your rules have a provision dealing with amendments to the rules - typically a two-thirds vote of the financial members voting; and subject to 21 days' notice.

Of course, this would not help you if you lack a quorum.

If this is a permanent problem then you would need to wind up the existing organisation (in accordance with the rules, which may allow winding-up if the number of members drops below a certain level) and then start a new body with more realistic quorum requirements.

Q. Does the mover of a rescission motion have to have attended the meeting at which the original motion was passed?

A. No.

Q. On what grounds may such a rescission motion be presented?

A. No restrictions apply in regard to moving such a motion, but naturally if the mover's speech does not convince the meeting then the motion will fail.

A chairman has a discretion to reject the motion if it frivolous or if a similar motion has recently been rejected (unless circumstances have changed).

Q. How should such a motion be moved and seconded?

A. In the same way as for any other motion. But check the constitution for any special requirements.

Q. Our organisation recently held a special general meeting to consider a motion of no confidence in one of its officers.

There were 27 members present. At the conclusion of the debate, the meeting appointed two scrutineers, as it was to be a secret ballot. At this point a member asked the chairman if abstentions would be counted for the motion and he replied, "Yes". Nobody challenged his response. As the ballot papers were being distributed, the chairman was asked to make it quite clear to members that abstentions would be counted for the motion. He did this and again there was no challenge to his ruling. He then instructed that members should mark their ballot papers either "For" or "Against".

Before the scrutineers left the room to count the votes, the chairman advised the meeting that 16 votes would be required to carry the motion. The result was: 17 For (15 plus 2 abstentions), 10 Against. The chairman declared the motion of no confidence carried. The meeting was then closed.

I must make it quite clear that none of us at this meeting realised the significance of the wording in our constitution, which requires a 60 per cent majority of members attending in person.

Subsequently, the secretary gave notice of a meeting to rescind the motion, stating: "The chairman incorrectly declared the motion as carried. With 27 members present the vote was 15 in favour, 10 against, with 2 blank voting slips. The constitution requires a 60 per cent majority of persons present in person at the meeting to pass the motion. On the day this would have required 17 votes for the motion to be carried. The advice the chairman received from the floor that the two blank slips be counted as abstentions and that abstentions should be counted as for the motion was incorrect."

Are there not a number of errors in this rationale?

A. The arithmetical mistake does not affect the true position.

Q. We now know that the advice the chairman received from the floor that the two blank slips be counted as abstentions and that abstentions should be counted as for the motion was incorrect. He ruled accordingly before to the ballot.

A. The timing of a ruling cannot affect its legitimacy.

Q. We also now know that abstentions do not count as either for or against a motion and that therefore the chairman should have declared the motion as lost. His ruling was not challenged by any of the other members present in the meeting room. Could this be considered acquiescence and, if so, would his ruling therefore stand, despite its being at odds with the wording in our constitution?

A. Acquiescence cannot override the constitution.

Q. This is not the first time abstentions have been counted as votes.

A. Past practice can be useful in resolving ambiguities in a constitution, but it cannot be regarded as the equivalent of inserting a new provision into a constitution.

Q. Have you any further comments?

A. Your chairman's declaration of the no confidence motion as passed when the constitutional requirements were not met was clearly incorrect and therefore void.

As regards his ruling about abstentions being counted, this has no mandate either at common law or by virtue of your constitution. The fact that he repeated his ruling indicates that his ruling was not a slip of the tongue, but the repetition does not alter the legal position.

Nor was the silence of the audience when this ruling was given of any significance. It could have resulted from ignorance or from loyalty to the chairman or from shyness - but whatever the reason silence is not the equivalent of a constitutional amendment.

It follows that the chairman should now announce that his declaration at the meeting was incorrect and that the motion did not in fact pass.

While the proposed rescission motion is an understandable and democratic attempt to let the voters decide a controversial matter it is unnecessary in the circumstances, as the motion to be rescinded does not exist.

The proposed rescission motion should itself be ruled out of order as a nullity. It cannot be used to achieve anything useful. Even if it failed, it would in no way create a reinstatement of the original incorrect decision.

Q. If a resolution is passed inadvertently in contravention of the constitution may it be declared null and void by a unanimous vote of the meeting?

A. It should just be declared null and void without any vote.

Q. Our constitution says: "At all general meetings, when a question of order or practice arises, the ruling of the chairman of the meeting shall be final." Can this be used to excuse a patently incorrect ruling?

A. No. Such a provision does not mean that the chairman is above the law.

Q. If a letter is received by an incorporated association, do ordinary members of that association have the right to see or receive a photocopy of the letter before it is tabled at a general meeting?

A. I am unaware of any legal principle which either permits or prohibits this, so it is really a policy matter to be decided by the association in general meeting or by its committee.

I would, however, encourage "open government" and thus suggest that reasonable access to inward correspondence be granted. Of course, there could be letters which for contractual or privacy or similar reasons need to be kept confidential. There could also be multiple requests which are designed to disrupt the secretary rather then seek genuine information.

Q. Do the members of an organisation have the right to decide whether correspondence is either "received" or "not received" by a general meeting?

A. Yes.

Q. I am currently the president of our society, but I will not be seeking re-election at our forthcoming AGM. At present no-one has indicated an intention to nominate for the position.

According to the constitution the society must notify all members of the date of the AGM by giving not less than 14 days' notice. Nominations must be received at least 14 days before the AGM and a list of candidates' names must be posted 7 days before the AGM.

Usually the secretary receives the nominations. Can the management committee request the secretary to advise the committee of all nominations as they are received? In this way we could minimise any nasty surprises, such as someone not considered appropriate being elected president merely because there was no other candidate.

A. One of the duties of a committee is to ensure an orderly succession.

Subject to the constitution, a committee is indeed entitled to view nominations as they come in. Furthermore, official information in the possession of the secretary, generally speaking, belongs to the committee.

The committee is certainly free to try to drum up further nominations if it feels that that is appropriate. Of course, it must not veto any nominee and it cannot prevent a surprise last minute nomination of a person not to its liking.

Q. A matter was passed at an annual general meeting seven years ago, but it is not going to be acted upon until now.

Is there a statute of limitations relating to the time between a matter being passed and its actual implementation? There has been no mention of this matter at the intervening annual general meetings.

A. No, there is no statute of limitations in such cases.

However, those who are opposed to an organisation's acting on an old resolution could, of course, always try to have it rescinded.

Furthermore, a committee which is in tune with the membership should, as a matter of courtesy, in circumstances such as you describe seek to renew its mandate through a fresh motion.

Q. At a special general meeting of my bowls club, called to consider a number of motions (including adoption of a revised constitution), it was ascertained at a point during the meeting that the quorum that was in attendance at the commencement of the meeting had since lapsed. What is the position?

A. Presumably your rules required the presence of a quorum throughout the meeting. Not all rules do.

Q. The Chairman consequently adjourned the meeting to the same day and time in the next week.

A. That is a common formula for a lack of quorum at the start of a meeting. Subject to the rules it would also be within the discretion of the chairman in the circumstances you describe.

Q. Is there a need to give notice of that adjourned meeting to all members other than the statement made in front of those present by the chairman when adjourning the meeting?

A. Technically, no. The courts have ruled that an adjourned meeting is a continuation of the former meeting.

However, it would seem desirable to issue a fresh notice:

Q. I am the voluntary secretary of a not-for-profit incorporated organisation that has been operating for 20 years. The association has adopted the "Model Rules" as its constitution.

Recently a former member of our staff took the management committee to the State Industrial Relations Commission for unfair dismissal. A confidentiality agreement was subsequently signed by both parties as to the terms of a settlement and any discussion on the matter.

Within hours after the hearing, the applicant mailed an application for membership to the association. This was rejected due to her past conduct, though the reason was not stated in the rejection letter.

She followed that up with a request for an appeal against the rejection, to be heard at a special general meeting. This is being arranged.

The committee is allowing 45 minutes for the meeting, and has asked her to keep to the salient points on why she feels she should be accepted as a member. We don't want her to veer off the subject, and especially to make derogatory remarks against members of the management committee or the organisation as a whole. How can we keep her to the salient points?

A. Before the debate even start the chairman should outline the procedure that he intends to apply and firmly state the rules that he expects to be followed.

Appropriate time limits should be announced.

In particular, normal rules of debate should be strictly enforced - with the affected member able to move a motion and to exercise a right of reply, but not to speak otherwise.

During the debate the chairman should enforce order and not tolerate irrelevance or tedious repetition or abusive language, and so on.

Q. Can someone raise a point of order? Or perhaps move a motion that the speaker be no longer heard, if the meeting gets out of control?

A. Yes, but this should not be encouraged, as it tends to inflame matters.

Q. Separately, there is the subject of the management's right of reply. Although our reasons for rejection are very valid, we understand that all we can really say in reply is that "there is a confidentiality agreement in place that prohibits management from discussing this matter".

A. If the debate is confined to the issue on hand, namely, the membership application, then the confidentiality agreement need not even be mentioned. In any case, management should be brief, as too much detail would only lead to even more disputation.

Q. Recently the members of our body corporate received the following communication from the manager: "Could you please let me know how the door is coming along as we still need to give final plan to the committee for their final approval. The committee have also requested your co-operation and the wishes of the body corporate from the AGM that we receive a copy of the final planning permit and plan for the door that you have now started, as it was the original intention to sight these before the door was started. This was not to stop you proceeding - they simply wanted to make sure that all was as originally planned."

Nowhere in the minutes did it ever state anything about the need for us to provide a copy of the final plan to the body corporate committee for their final approval. Is it morally or legally right that the manager can talk about "the wishes of the body corporate from the AGM" when there was nothing whatsoever to that effect recorded in the minutes?

A. The manager may have been technically incorrect in using the words "from the AGM", but nothing much seems to hinge on that. A committee is entitled to express its wishes at any time.

Furthermore, the committee in this case does not seem to be asserting any legal authority - it is very politely and reasonably asking for voluntary co-operation in regard to something which is in everybody's interest.

Q. What is the legal status of the minutes between annual AGMs and before they are formally ratified?

A. Unconfirmed minutes are merely drafts and have no legal status. Even confirmed minutes are only prima facie evidence of decisions, capable of rebuttal by evidence in a court of law.

Q. What is the correct procedure to follow to have minutes amended between AGMs? And does there have to be some sort of proof of a difference of recollection? And some time limit?

A. In practice many organisations circulate draft minutes shortly after an AGM and while memories are still fresh. This then enables members to suggest corrections which, if uncontroversial, could be included in a revised draft. Any controversy could be resolved only by a future meeting.

However, it is often more productive to pass a fresh resolution setting out the current wishes of the meeting, rather than devote resources to pedantically trying to establish precisely who said what on the earlier occasion.

Q. The immediate past president is an ex officio member of the committee. What is the definition of "ex officio" and what rights do such members have?

A. "ex officio" means "by virtue of his office", in this case simply by virtue of being immediate past president and not requiring election. The rights are the same as for any other committee member.

Q. Can the immediate past president be voted into the vice-president position?

A. Yes, a person can hold both positions. Of course, this would deprive some other person of the opportunity to gain experience at the top.

Q. A club which is not incorporated has a set of rules similar to Associations Incorporation Act model rules.

One rule is that subscriptions are due and payable on 1 July and must be paid by 31 August. Our annual meeting is to be held on 15 August.

Another of the rules is that only financial members of the club are eligible to nominate for a position or to register a vote.

If a subscription has not been paid by 15 August is the member concerned classed as a financial member and eligible to vote at the annual general meeting?

A. The 31 August date is the end of a grace period before a person is struck off the membership roll.

A person becomes a financial member only by actual payment. Thus in the absence of specific words to the contrary in the rules the fees would need to be fully paid up at the time of nomination or voting.

Q. Can you give me any thoughts on insurance for incorporated clubs. I am having trouble convincing an association that they need insurance in their own right. The members trot out the argument that because we meet at an RSL club the RSL insurance would cover the committee.

I argue that the RSL cover only extends to an incident where the RSL was negligent - for example, they might have a torn carpet and somebody tripped over it and was injured.

If one of our members was negligent - if, for example, he put his walking frame in front of a doorway and somebody tripped over that - then that member committed a negligent act and therefore the committee could be liable if the injured person were to sue.

A. Depending on the circumstances, organisations may require some or all of the following insurance covers (amongst other things):

Public liability insurance, to cover the legal liabilities of the organisation and its committee for personal injury and/or property damage, and (in some cases) for defamation or in connection with the giving of advice is also required.

Such cover is becoming more important than formerly, because the community is becoming more litigious. But, correspondingly, such cover is becoming harder to obtain at a reasonable price or even at all. In some cases organisations might because of this have to abandon some worthwhile traditional activities.

But you may be able to arrange with the RSL and its insurer to extend its policy to also cover your organisation.

Q. I need a precise analysis of the role and authority of a chairman. The chairman of our organisation often dictates action, cancels events, holds meetings with other similar bodies without prior discussion, is very rude to the older people, shouts, comes 30 minutes late to make an entrance and does not help set up or clear up from functions. She has now unilaterally decided that the meeting venue will be at a place convenient to her office, up three flights of stairs). We were advised by a note stapled to the minutes for the next meeting.

Can a chairman decide a permanent change of meeting venue without Committee input and approval?

A. A chairman has implied authority to act in force majeure situations - for example, to hire a meeting room if the normal premises burn down.

Even then, it would be best for the chairman to consult one or two other committee members before acting.

If a chairman makes decisions which a committee does not favour it could always override them - although the chairman's decisions would stand until that actually happened.

Q. I am a member of a voluntary association that has officially adopted the usage of the parliamentary procedures as per your book Guide for Meetings and Organisations. I am the secretary of the association.

We don't have a constitution. But years ago the association also adopted by-laws. These were mainly based on your Guide. However, we now note that there many differences between the by-laws and the Guide.

Some of us believe that the Guide must be followed, while a a minority feel that the by-laws are legally binding and must be strictly followed, even if this means that we would have to ignore the Guide.

A. It is necessary to distinguish two scenarios:

Q. Can a motion which was passed at an AGM be raised again in a committee meeting with a view to reversing the decision?

A. Not unless your organisation has an unusual rule to that effect. Normally a decision of a general meeting is binding on a committee, which has only delegated authority and no right to defy the will of the membership.

Of course, notwithstanding the general principle, a committee would be entitled to act in force majeure situations.

Q. At a recent board meeting of our bowling club, a director moved a motion calling for a change to the method of voting at this year's election. The motion that was put was to change the requirement from having to go to the club to vote to having a postal vote.

The motion was put and the vote resulted in a deadlock. The chairman exercised his casting vote in favor of the motion.

Postal voting can be allowed according to our constitution. However, the club has never had postal voting in the past (the club is over 50 years old). We believe that this change in voting is a radical change to what has taken place in the past, let alone the additional costs and time that are required to set up a postal vote.

We believe that the chairman's casting vote should have been in favor of the status quo, so as to give more time for investigation of the issue. Are we correct in our belief?

A. A casting vote exists only if it is provided for in the constitution.

While it is traditional and courteous for the casting vote to be exercised in favour of the status quo this is not a legal requirement of any sort.

In your particular case the following seem relevant:

Collectively these features would seem to outweigh the costs/time arguments which are, of course, also valid.

Q. We have called for a special meeting of the board to take place next week, so that a rescission motion can take place.

The chairman has now said that a two-thirds majority will be required to rescind the original motion, although there is nothing in our constitution saying that this is the case. Is the chairman correct in this regard?

A. No. In the absence of any constitutional provision to the contrary a simple majority suffices.

Q. The chairman has also come out and said that he wants all members to be given the chance to vote and that is why he has supported a postal vote. In our opinion the chairman has not had any problems in the past regarding the club's method of election of directors. We believe that the chairman is worried about the chances of his re-election due to things that have taken place in the last twelve months.

A. That may be so, but in the end the members will decide.

Q. Our organization will be holding its annual general meeting shortly. There are two nominations for the office of president. A few people have said that they will not be able to attend the meeting and these have been asked to forward their votes in sealed envelopes to the returning officer. May the returning officer open those votes when received or must they stay secret until the election?

A. The normal practice is to deal with votes only after the poll has closed.

OUTRAGEOUS CONDUCT BY A CHAIRMAN

Q. I attended a special general meeting of my old football club regarding amalgamation. I am strongly opposed to the amalgamation. However, the chairman was in favour. The proposal for amalgamation was advertised.

However, at the meeting the chairman did not allow any speakers for or against the advertised motion and it went through narrowly. I am trying to obtain some documentary evidence that this action was invalid and therefore that the decision of the meeting was null and void.

The club is incorporated. However, the club's rules are silent on motions. Is there a requirement that the chairman should have abided by? If the rules do not provide, is there some overriding provision that must be abided by?

A. While the chairman's action was outrageous the fact remains that the members voted in favour of the motion. If they did not like what was happening they could have taken a point of order or moved a procedural motion to force a debate. They could also have shown their displeasure by voting against the motion itself.

I suspect that any legal action would be unsuccessful - the courts do not like to interfere with internal matters of this sort.

I suspect also that Corporate Affairs will not want to get involved, but at least it will cost you nothing to approach them.

However, you could call for an extraordinary meeting to rescind the motion and to remove the chairman. In conjunction with this you could issue media releases exposing this matter and calling on others holding your views to support you.

You could also organise a protest meeting.

In the end, of course, none of this will help you if you lack the numbers.

Q. I wrote to Corporate Affairs six weeks ago detailing what happened, but have not yet received a reply.

A. You could complain about this delay to the Ombudsman.

Q. I had some very important matters which I wanted to say at the meeting, but I was not allowed to speak. I am sure that my arguments would have swayed at least one person of the 57 who were in favour of the motion. It was a special general meeting and the president was interested only in the motion that was advertised.I doubt that he would have entertained a procedural motion, or anything else for that matter.

A. Maybe. But his failure there would have strengthened your claim in court.

Q. It was the most important meeting in the club's history - its very survival. What can be done in these circumstances to stop a president doing these things?

A. Get the members to elect a new president.

Q. We are a voluntary association registered under the Associations Incorporation Act. A small group of members have been urging other members to sign a requisition for a special general meeting to consider motions to remove each director individually. The circulated pro forma states a reason for the removal.

The group after some 12 weeks have not got the required number of requisitions to require the board to call a special general meeting. Meanwhile rumour abounds and this is destabilising the organisation.

The board itself has therefore decided to call a special general meeting, placing on the notice paper the same special resolutions demanded by the dissidents and their reason, so that the matter can be finalised one way or another.

In regard to such a meeting there is specific reference to natural justice in our Act. I have been told that the need for the directors challenged to be aware and to have time to prepare a defence requires that the chairman:

Other conflicting advice we have received contends that normal meeting procedure applies, in that people speak for and against the motion and that amendments are allowed. After everyone else has finished speaking the directors either answer the charges or ask for time to prepare a defence - in this scenario no one is sure when the right of reply is exercised, whether it should be before or after the directors' defence speeches.

A. It follows from the facts that you have set out that the resolutions in the notice of meeting belong to the board and not to the dissidents. Each would need to be moved by a representative of the board (other than the director named in the resolution), although this could be done using words to the effect that the resolution is being proposed formally to enable it to be discussed and that it does not necessarily represent the views of the mover.

Debate would then take place as normally, with the mover entitled to a right of reply at the end of the debate. The scope of the discussion would be governed by the words in the resolution itself, and would not be limited by those in any accompanying statement.

Conceptually, amendments could also be moved in the normal way, but very few amendments would seem feasible because of the need for them to be relevant to the terms of the resolution and to be within the scope of the notice of meeting.

For natural justice reasons the director named in the resolution should be given the right to speak at a time of his choosing and without time limit, at any stage between the speech of the seconder and that of the mover in reply. He or anybody else who has not previously spoken on the resolution could also move the adjournment of the debate.

At the discretion of the chair, questions to the director concerned or to any other member could be permitted at any time between the speech of the seconder and that of the mover in reply.

Q. I am the president of an incorporated association. We have a member, X, on our committee, who often works outside the committee's guidelines, including those on spending funds.

Motions have been put in place in an attempt to overcome this problem. Over a period X has worked hard, sometimes for our good but sometimes conversely. She has an obsessive-compulsion disorder which make her difficult to handle in committee.

At a recent committee meeting our secretary, Y, gave notice of a motion: "That the committee does not have confidence in X". I accepted the motion, ruling that 3 weeks' notice must be given and reminding the meeting that such a motion would need 75 per cent support to pass.

Such a meeting was immediately planned. The majority are hoping that X will resign before then, but she has countered with a notice of a no confidence motion in Y.

X has hinted that she would now like to take leave of absence for two months. Y is of much more value to the association, but it has now become a case of one or the other.

Should I grant X leave until the next AGM, rather than call a special general meeting at which a lot of dirty washing might be aired?

Can X stall a vote by taking leave?

Can the motion involving X be put and voted on in the absence of X, either on leave or willfully absent?

Can X make a written submission against the motion and for the motion involving Y, which she would like to move?

A. Five issues arising out of your questions need comment:

It follows that the motions that you quoted should be ruled out.

"The position of any committee member may be declared vacant by a resolution passed by a 75 per cent majority at a general meeting, provided that at least 21 days' written notice of the proposed resolution is given and provided also that the member concerned is given an opportunity to be heard before the resolution is voted on."

Of course, members do not have to avail themselves of such an opportunity. Furthermore, they could be represented by a friend or a lawyer.

Q. Our current secretary has declared that she will not be available for re-election at the next AGM. Nominations have been called for, via mail and e-mail. None, so far, has been forthcoming. What happens to an incorporated association if no-one accepts a nomination for the role of secretary?

A. You should check the Associations Incorporations Act in your State, but the normal statutory requirement is to have a public officer. This does not have to be an elected person. It could be an accountant willing to act, possibly for a nominal fee. The main purpose is to have someone who can be served with legal processes - a rare event for most organisations.

Committees need to fill vacancies in that office within 14 days in order to avoid penalties and eventual deregistration.

Secretaries are more of an internal matter, unlikely to concern the authorities even if the constitution is breached, unless someone complains. But the practical problems remain - someone has to send out notices, write up minutes, handle correspondence and so on. It would be up to the president to find one or more volunteers to perform these tasks or do them himself or herself.

Q. If changes are made to a constitution at an AGM, do these govern a general meeting held later on the same day?

A. Ideally, a resolution proposing a constitutional amendment should set out its commencement date. If it does not, then the amendment would come into force as soon as validly passed - making the order of business at the meeting quite important.

However, an amendment requiring an impossibility would not operate immediately - for example, a provision requiring a certain period of notice. But, of course, if desired, the meeting could be adjourned to accommodate the new provision - so it would all depend on what the members want.

Q. I was elected a life member of an organisation some years ago. However, the validity of this status has been queried.

I have just gone back to the constitution current at the time and unfortunately it did not contain any clause that dealt with life members or honorary members. Therefore would it not be up to the committee to recommend to the members life membership for somebody and for this to be moved seconded and carried at an AGM?

A. It rather looks as though you might never have been a life member after all. Certainly, the cleanest method would be to start again and have the members confer a life membership on you now.

However, if the constitution is still silent on this subject, then you still have a problem: what does such an honour really mean?

If the intention is merely to thank a member for his past service and to include his name on letterhead and the like, then an ordinary resolution of the members would suffice.

However, if the intention is to create an honorary member not paying fees in future or having other special privileges (a common practice), then the constitution would need to be formally amended first.

Q. Our society is an incorporated association established pursuant to the Associations Incorporation Act. In its rules the following standard provision is found:

"Except as otherwise provided in these Rules, the Secretary must keep in his or her custody or under his or her control all books, documents and securities of the Society."

The Society's honorary secretary is insisting that the Committee of Management agree that this clause means that he is entitled to effectively keep in his custody or under his control all books, etc., of the Society, which he interprets as meaning free access to all the records and operating documentation of the Society, at his discretion, 24 hours a day, irrespective of the views of the management team, security considerations and systems management.

The organisation has come a long way since it was established about 25 years ago; it has a membership of well over 1000, a management team comprising paid and volunteer staff under a general manager, an office maintained during office hours with a paid nd voluntary staff contingent present at any one time of about six. We are formally audited and have accountants. There is an executive management team. This whole structure is overseen by the board, which includes the honorary secretary, myself as chairman and eight others.

The management team and GM run the society on a professional basis, with a clear separation between board responsibilities and management responsibilities.

The office is open during office hours but closed for security reasons at other times. Senior management, such as the GM, have access after hours, but the board has hitherto always agreed that it is inappropriate to give keys to the office to board members (including the honorary secretary) as our responsibilities are best performed during office hours in consultation with management.

The recently elected Honorary Secretary has other views: he wants access at all times and he actually wants the ability to go through office records whenever, irrespective of the views of the management team. He argues that the rule must be read literally: all the books must be under his strict control and he can do whatever he likes with them, whenever he likes, providing they are under his control.

There is deep suspicion or concern in some quarters, apart from the somewhat unprofessional implications, undermining staff and management confidence.

I have ruled that in the circumstances of our organisation, the rules oblige the secretary to be assured that there are appropriate systems in place to ensure that all "books, documents and securities of the Society" are appropriately secure, managed, retrievable, etc., in the registered office of the Society and that the management team are performing their responsibilities in relation to such records appropriately.

I have said that the above rule does not actually require the secretary to physically or directly do as the words may at first be read.

The honorary secretary has said that I am wrong. What are your views?

A. Your interpretation of the rule seems to lead to an intolerable situation. Even without a specific mandate in a constitution, access to an organisation's records would be regarded as being essential to the carrying out of a secretary's normal duties. In practice an elected secretary would not want to remove the files physically or inspect them in the middle of the night.

As he would be held responsible if anything went wrong he needs to insist on proper access. If this is refused he would have to resign or take the matter up with the authorities.

It is hard to see how he came to be elected secretary if nobody trusts him. The clause you quote seems both normal and unambiguous. A secretary who disregarded it would be derelict in his duties. It is astonishing that this matter cannot be resolved amicably.

Q. I was awarded life membership of an organisation which changed its name and became incorporated. Would my life membership carry over?

A. The change of name by itself would make no difference, but in effect incorporation would have created a brand new body. Life membership would carry over only if the new constitution specifically provided for this to happen.

Q. The constitution of our incorporated association restricts the number of proxy votes to five per member. A number of members are proposing a change to the constitution to limit the number of proxy votes to one per member.

Is it legal to restrict the number of proxy votes in a constitution?

A. Proxies do not exist at common law and organisations desiring to use them need to provide for them in their constitutions.

For incorporated associations proxies are one of the subjects to be dealt with in their constitutions, but such bodies can make any specific provisions they wish.

Q. Are proxy votes allowed at extraordinary meetings?

A. The same rules as for ordinary meetings would normally apply, apart from the fundamental principle that only matters included in the notice of meeting can be discussed.

Q. Our constitution states that there will be no proxy voting. However, it does not say anything about absentee voting. At our AGM yesterday a candidate for president tabled 55 nomination forms voting for him. The constitution states that nomination forms shall be delivered to the secretary of the association not less than seven days before the date fixed for the holding of the annual general meeting. In light of the above should the election be declared null and void or the whole AGM invalid?

A. There is some confusion here. By "nomination form", do you mean a form saying "I nominate XYZ for the position of president"? If so, 54 of the 55 forms would achieve nothing. Such a form would not act as a vote and even the remaining one would be out of time.

The election would be void if such forms were actually admitted to the count as votes, but a returning officer should just reject them. If he does not, then the AGM itself would still be valid, but a further election, conducted properly, would be required.

Q. I am the vice-president of a small sporting club, which is in great discussion about our upcoming season. At our AGM we had elected a selection committee to rate the players and place them in teams. Some members are not happy with the format chosen by the selectors and are voicing their opinions.

I have been asked whether at an ordinary meeting the president is able to refuse a motion that has been seconded. If not, does this mean that all motions that are seconded have be debated and voted upon?

A. First of all, have a look at your organisation's constitution. It may have provisions dealing the right to move motions and may, for example, set out deadlines for giving notice.

Apart from that, chairmen have wide discretion in regard to accepting motions, although if they act foolishly then the meeting could carry a dissent motion.

A chairman must observe natural justice. A motion should really be rejected only on grounds such as the following:

Q. Should an election be declared null and void where the returning officer did not follow proper procedure and ensure that only those who were entitled to vote did so?

A. Technically yes, but if excluding the votes of ineligible voters could not have affected the outcome then as a practical measure the result could be allowed to stand.

Q. The returning officer conducting our election did not sit in the chairman's chair and declare all positions vacant, as required by our rules. Does this invalidate the election?

A. Whatever physical chair the returning officer occupies during the election automatically becomes the "chair" for purposes of your rules. "Taking the chair" really means taking charge, not sitting in a particular place.

It would not be necessary to use words for declaring positions vacant, if the conduct made it clear that that was happening; this would be inelegant but not more than that.

Q. During the course of an election the outgoing president whose office should have just been declared vacant was allowed to make rulings and determinations concerning the election. Is that fatal?

A. This is really a matter for the returning officer. If the returning officer acquiesced then this is equivalent to his making the rulings.

Q. A proxy delegate was allowed to vote when the section for which he was a delegate had already voted by other means. The proxy delegate's vote should have been called invalid at this point. Instead, the returning officer declared the vote 8-6 in a candidate's favour. I pointed out that as there were only 13 sections that could vote there should not have been 14 votes. Does another election have to be held?

A. Not in this particular case. Excluding one vote would have led to either 7-6 or 8-5, neither possibility reversing the declared outcome.

Q. I am the chairman of an organisation and recently I had to call the police to have some members who were causing trouble removed. It is now suggested that legal action could be taken against the organisation and myself.

A. If and when legal action is actually initiated you will need to seek legal advice. Until this happens do not worry about it - most of these threats are just bluff or expressions of annoyance.

Q. Our organisation is holding an extraordinary meeting shortly, but no one will have received the required 21 days' notice.

A. That is quite serious. A meeting without proper notice would be invalid.

It would be best to issue another notice, showing the cancellation of the proposed meeting and calling a meeting for a different date.

If people turn up on the earlier date do not open the meeting and just explain the situation.

Q. Some of our members are threatening that they will leave in bulk, by way of protest. I do not want this to happen, but we also cannot live with troublemakers. How should this be handled?

A. You might consider inviting some distinguished outsider who would be acceptable to both sides to chair the next meeting.

Q. When seeking nominations from the floor for various elected positions is it necessary to ask for a seconder for each nomination?

A. Only if the constitution requires it. The need for seconding in the case of motions - to stop wasting debating time on frivolous motions - does not apply here, although some organisations want a seconder to avoid the costs of elections caused by candidates without support.

Q. Our association has adopted a very simple constitution. Several members are confused by a clause reading:

"Membership of Management Committee: The management committee of the association consists of a president, vice-president, secretary, treasurer and any other members the association members elect or appoint at a general meeting."

What is the correct interpretation of this clause? We want to elect only the four main positions at the AGM and then have the new management committee invite nominations from the association for various subcommittee positions.

A. Such a wording would permit any member at a general meeting to move: "That Joe Bloggs be elected as a member of the management committee." Members could then vote for or against this. A committee member could, if desired, advocate a "no" vote.

Q. Is a chairman required to ask for a seconder for a foreshadowed motion?

A. Not at the foreshadowing stage - only if and when the motion is actually moved.

Q. We are the owners of three sheds within an industrial complex comprising 17 sheds and 11 owners. Another complex facing ours is a mirror image. Recently the committees of both complexes decided to construct a driveway/crossover over the boundary between the two complexes, effectively making an internal circulation driveway between them.

A motion was drafted to be presented at an EGM. We inquired from council whether there were any council rules or regulations to be observed and were told that there were, as a material change of use would occur and parking spaces would be lost.

We tabled this information at an EGM where only we as owners with three votes and the chairman as an owner with two votes were present, along with the body corporate manager, who was present to take the minutes.

Three owners had sent in postal votes. The motion as proposed (drafted prior to our acquisition of information from council) was presented and the body corporate manager advised the chairman of his options, one of which was to rule the motion out of order.

He, however, chose to put the motion and vote on it, despite the fact that the three absent voters were unaware, at that stage, of the information just received from council. Using these votes, the motion was passed 5 votes to 3. In essence the chairman was the only voter in favour who was in possession of all the relevant information.

A motion to raise a special levy on all owners to cover the cost of the driveway was then also passed in similar fashion. The driveway has now been constructed, but council has issued enforcement orders to have all rules and regulations followed, as the driveway is considered to be illegal.

We believe that the motion should have been ruled out of order, so that time could have been given to inform all owners of all relevant information and the associated costs, prior to a new motion being drafted.

Was the way the chairman continued with the motion legal?

A. Unethical and unwise, but probably legal.

Q. What could we have done to stop what we considered to be a vote to do something illegal?

A. You could not really have stopped the vote without the numbers. Possible remedies shortly afterwards:

Q. What can we do to prevent a similar occurrence in the future?

A. Several things - for example:

Q. Currently I head up a steering committee responsible for launching a new branch of an association. Is it necessary to have a proposer and seconder for every resolution put before a general meeting of an association or a committee meeting of that association?

My view is that if the chairman is prepared to allow discussion on any proposal then such formalities are not required. I find it most irritating when the chairman asks for a proposer and seconder for such routine items as the confirmation of the minutes of a previous meeting.

A. Strictly speaking, in the absence of standing orders to the contrary, a motion does not require either a mover or a seconder. While the custom of having a mover has great convenience in the case of complex matters, in simple situations an informal discussion can take place, with the chairman of the meeting formulating a precise set of words which encapsulates the apparent consensus view and then putting this to a formal vote.

The important aspect is the decision by vote of a meeting, not the origin of the words of a motion.

However, there are actually some mainly minor advantages in having movers and seconders, time wasting though it might seem - for example:

Q. If a meeting discusses an issue and all persons agree to resolve a particular matter, can the minutes simply show "resolved" without the chairman asking for a mover and seconder?

A. Yes.

Q. Can the chairman of a meeting move motions from the chair and vote on all motions before the meeting?

A. Whether the person presiding over a meeting actually has the legal right to move motions or to cast deliberative votes depends on the precise wording in the constitution of the organisation concerned. If that wording gives that right to every member then that would technically allow that person, if a member, to exercise that right.

However, it is unwise for a chairman to participate in debates where that would destroy the image of impartiality.

Q. The chairman of a previous annual general meeting of a non-profit body refused a substantive motion (moved and seconded from the floor) during general business on the grounds that the motion needed notice. The chairman ruled that a motion not having had notice can be framed only as a recommendation to the executive committee.

The constitution of the organisation (in the clause covering AGMs) allows for notices in the following terms: "The business of the meeting shall be to consider and deal with notices of motion (which shall have been received by the secretary not less than 30 days before the meeting) and to transact any other general business. The constitution does not specifically preclude motions without notice. It also states that the agenda for the AGM is to include the item "General Business".

My understanding has been that if the item general business is included on the agenda then a substantive motion may be put and that it would carry the same weight as one, on a different matter, that had been dealt with under notice.

Any member feeling that they would have liked to have more time to consider the motion could of course vote against it, and if sufficient members felt that way the motion would be lost.

This organisation does not appear to have adopted a set of standing orders. I know of one member's intention to move a motion from the floor at our next AGM. Should that motion be allowed?

A. The rule that you quote about needing 30 days' notice is quite specific. The usual purpose of such a rule is to allow the words of the proposed motion to be set out in the notice of meeting, so that not only can members inform themselves but also they can decide whether to attend.

The remedy of voting a motion down is not available to members not present.

The chairman's suggestion for a motion of recommendation seems a very reasonable compromise.

The rule regarding general business cannot override the specific notice requirements.

A chairman should use discretion in deciding what can and what cannot be dealt with under general business - thus motions seeking to make policy would be out but motions calling for further research would be in order.

Other acceptable general business would include questions to the committee and motions of congratulations or sympathy and the like.