BRIEFING NOTE FOR CURRENT AND FORMER MEMBERS

[Noel Mc Laughlin]

Okay gents...Stand easy...Listen in...

I'm in for surgery tomorrow and wanted to get this brifeing note out to you all for consideration and comment.

I'm sorry about the length of this post (1600 words), but the issues considered therein, were in my opinion, too important to skimp on the contentions.

I spoke with John Coe at length on Friday morning – for almost one hour. We discussed a range of issues he sent to me in some private emails.

I now wish to address some of those issues based on notes taken at the time of our telecon. I found John to be a quick study in the matters he sought advice on.

BACKGROUND

“The management committee of the Association consists of a president, treasurer, and any other members the Association members elect at a general meeting” (Rule 20(1)). The Committee is elected subject to the provisions of Rule 21 of the Constitution. Their position is substantive for the next 12 months(Rule 22) or until they either resign office or have their office terminated within that 12-month period (Rule 23).

CASUAL VACANCIES

Where a management Committee member resigns from the committee, “the continuing members of the management committee may act despite a casual vacancy on the management committee” (Rule 23(3). In this instance, the resignation of the President should not impede the reasonable and lawful business of the Assn. There is no requirement for the business or operation of the Assn to cease. Similarly the resignation of the VP, RSM and other Committee members should not operate to act as a fetter to the Assn’s continued operation. The spirit and intent of the law in its application to this Constitution is quite clear – the provisions enable continuity of management (leadership) and operation of the Assn’s affairs. The continuing members in this instance are: Secretary (John Coe), Treasurer (Mike Kennedy) and Ordinary Member and Immediate Former Secretary (Tony Shanks).

APPOINTMENT OF MEMBERS TO THE COMMITTEE IN CERTAIN CIRCUMSTANCES

The Constitution has several beneficial provisions built into it, including enabling provisions to ensure the Committee’s survival to conduct the affairs of the Assn. The Constitution provides for the continuing members of the Committee to be assisted in managing the affairs of the Assn.

The Constitution provides for :

“the continuing members of the committee may appoint another member of the Association to fill the vacancy until the next annual general meeting" (Rule 23(1)). This is exactly the same as a Senate vacancy is filled on the resignation/retirement/death of a duly ELECTED incumbent.

I stress the point to all that the Committee may in this instance APPOINT.

Therefore any action taken by the Committee to APPOINT a member of the Assn to the Committee, during the current operating year up until the next AGM, is consistent with the governing legislation and does not offend that legislation.

A caveat to this is that any member so appointed, must be a financial member.

It follows that, no member can just waltz in off the street and automatically expect to get a position on the Committee to help manage the Assn’s affairs. The continuing members of the Committee retain the right absolutely to approach any financial member whom they consider to be suitable to assist them on the Committee, and to appoint that member should that member consent to the appointment.


This would be the position until the next AGM at which time all positions are declared vacant and elections for all positions are carried out in accordance with the law.

The term “appointment” is defined as : “The nomination, selection or assignment of a person to perform a function or enjoy a right” (Butterworth’s Concise Legal Dictionary 3rd edition). “Appoint” is defined in the Macquarie Essential Dictionary as: "to nominate or assign to a position, or to perform a function”;

The continuing Committee must operate consistent with the provisions of Rule 26(1); viz

“At a management committee meeting, more than 50% of the members elected to the committee as at the close of the last general meeting of the members form a quorum.”

My discussions with John indicate that as it stands, the three continuing Committee members constitute the required 50%. Therefore it follows that, assistance will be sought by the Committee for appointment to fill casual vacancies.

COMMITTEE MEETINGS

The management committee may meet at such times as it considers appropriate (Rule 25(1)).

Right now that is a critical tool in enabling the Assn to survive – 2 members are in full-time employment - one running his own business. The third person – the Secretary is retired and as such, given his office and the responsibilities that flow therefrom, that is in and of itself an advantage, given that any Assn Secretary is normally the person who exercises considerable influence in managing the affairs of an incorporated Assn. They should be left to meet as and when they require during the current situation.

There are cogent and exigent circumstances existing for allowing them to exercise their powers and functions free of any unwarranted interference (heed the last 5 words).

RESOLUTIONS
In the current circumstances, a difficulty may arise in Committee members getting together to physically sit down and meet with each other due to geographic spread of their places of residence. The provisions of Rule 31 provides:

“(1) A written resolution signed by each member of the management committee is as valid and effectual as if it had been passed at a committee meeting that was properly called and held.

(2) A resolution mentioned in sub rule (1) may consist of several documents in like form, each signed by 1 or more members of the committee.

(3) The resolution is passed when the last committee member signs.”

This may be seen to be somewhat time-consuming however it may be necessary to operate under these provisions, as the case may be.

SPECIAL GENERAL MEETING
Rule 39 sets out the processes for calling a SGM. This is a step not lightly taken. I do not believe that the Assn’s interests would be best served with the calling of an AGM at this point in time.

READMISSION TO THE ASSOCIATION
I discussed with John, the possibility of readmitting former members into the Assn to help it survive and hopefully thrive. I put certain things to him and he agreed to look into the matters. We have had further communication on this particular matter and I do not wish to prejudice any progress on the topic on readmission of resigned members in certain circumstances, namely those eligible former members who have resigned since 25/4/2009 and are still, to all intents and purposes, financially paid-up to 25/4/2010.

Should John and his Committee see their way clear to implementing this, then I would argue that members who are in that situation should give this particular matter full and serious consideration –when and if John elects to go down that track.

MY PROPOSAL
I propose that former members who meet the above criterion – paid up until 25/4/2010,(eligible former members), be considered for reinstatement as a one-off and to have until 5pm (Qld time) on [date to be set by C’ttee] to apply for reinstatement. Any application from eligible former members which is not received by 5pm Qld time on the date specified, will not be considered. Applications may be lodged by email, fax or by surface mail but must reach the Secretary by no later than 5pm Qld time on the due date.

It is the only way in which the Assn will survive its current crisis. I do not want to see the OFT exercise its powers as an intervener or for that matter, for the Supreme Court to become involved. That is what the Assn will face unless this issue is given urgent first aid until the next election.

THE REASONABLENESS OF THE CONTIUING COMMITTE’S ACTIONS (THE TEST OF REASONABLENESS)

In looking at whether the issues discussed with John are reasonable in all the circumstances, I rely on the decision of Federal Court in Australian Doctors’ Fund Ltd vs The Commonwealth of Australia (1993) 14 ALD 451, per Beazley J, in which the Her Honour held:

"I am also of the opinion that the definition of "reasonable" and "rational" in Modern Legal Usage supports the statement of Davies J in Burchill which was relied upon by the Tribunal. In addition, the Shorter Oxford Dictionary defines reasonable to mean, relevantly: "Agreeable to reason; not irrational, absurd or ridiculous." This is the very meaning applied to the word "reasonable" by Davies J and in my opinion accords with the ordinary commonsense meaning of the word." (Department of Industrial Relations v Burchill (1991) 33 FCR 122; 105 ALR 327, considered).

There are no subsequent superior Court decisions that I can find which disturb the decision in the Australian Doctors’ case. In my view, I consider the actions contemplated by the Continuing Committee as discussed with John satisfy the above test.

The continuing Committee stands in the members’ shoes and is considered to be acting in good faith and in their best interests. It cannot discharge its function without the support of the members .

If and I stress IF, the C'ttee approve the proposal to readmit eligible former members, then those eligible former members who retain current financial status until 25/4/2010 are urged to reconsider their decision to resign and apply for a revocation of their resignation.

I have offered to apply to be reinstated into the Assn until 25/34/2010 when my current financial status will expire – unless I elect to renew my membership after that date – to help it find its way clear of this situation.

The Assn has new and dynamic leadership - with a vison for the future, they need your support.

If that support is not forthcoming, then the Assn may as well wind up its affairs or try and amalgamate with another ESO –probably either the RAACA (Qld) or the new Australian Cavalry Regiments Association (ACRA).

Right now, I'm completely tapped out.
I am not an expert here, I'm just trying to give one and all some light at the end of a long tunnel - wearing my track pads down and shredding my sprocket rubbers in utter helplessness.

The choice and the decision to help the Assn survive and thrive are entirely in your hands.

If not, then I believe as I have alluded to in the posts below, you have one of two options:

either fold or amalgamate.

Regards,

Noel.