DonRamsay

It is fact;

• the constitution allows for the AGM to be held within 18 months from the registration of the Company.
   
   
  

It actually requires the AGM to be held within 18 months

 

• the constitution (clause 36.4) states a director's term starts at the end of Annual General Meeting at which they were elected.
   
   
  
• the special resolution requires the initial directors to "cause an election to be called as soon as is practical, and in any case no longer than six months after the end of the 2015/16 financial year, to bring the board size to no less than five members.
   
   
  

 

 

What the special resolution does not authorise is for the election (and thus appointment of directors) outside of the conditions set out in the constitution. In common terms, the members are telling (by voting YES to the resolution), that we expect such an election (as per the condition) to happen within 6 months.

 

Don, I put to you that the word "annual" in clause 36.4 may in fact be an error (clause 34.4 does not include this term). These "typo" type errors, which the constitution is riddled with are in my opinion show-stoppers.

No, it is not a typo in either 34.4 or 36.1

 

Don't forget that an AGM is also a General Meeting. It is just a General Meeting with a few extra rules.

 

Any other typos that anyone is aware of?

 

The resolution calls for at least 5 directors by end of 2016. After that time it's up to the board to decide it's numbers between 3-7. Members always have the option of bringing a resolution to a general meeting to override the board's decision (providing it's not against the constitution)

No, the SR requires the initial directors to conduct an election so that the number on the Board is increased to at least 5. This implies that as soon as the election is decided, these extra directors can take up their seats on the Board. That is what will happen. The Special Resolution gives the Board the responsibility and the authority to run a one-off election.

If we followed your logic, Rhys, the extra Directors would not be entitled to join the Board until the end of what would be the first AGM in late 2017. It is very clearly not the intent of the SR to conduct an election to have a Board with five Directors as soon as is practical and not later than 31 Dec 2016 and then not allow the extra Directors to take up their seats for another 9 months.

 

I think you would agree that the Directors that join the Board at the end of an AGM do so because their election was triggered by an AGM. In the case of the extra Directors required by the SR, their election is triggered by the SR not an AGM.

 

Let me make it plain,

 

• there will be an election to bring the numbers of Directors on the Board of RAAus Ltd up from the three initial directors to a total of a minimum of 5 directors.
   
   
  
• the election will be held as soon as is practical after the incorporation of RAAus Ltd.
   
   
  
• as soon as the election has been concluded, the successful directors will take their seat on the Board.
   
   
  
• the extra Directors so elected will serve a term on the Board in compliance with the Constitution.
   
   
  

 

 

If you choose to contest that course of action you are welcome to but I bet the lawyers we engaged to devise the strategy and their professional indemnity insurers will take to such a complaint a very big mallet.

 

 

Now that I dont like Don. We may never have 7 members and say for arguments sake, the 6th or 7th person who puts their hand up and just 3 of the 5 on the board doesnt want him or her on the board then tuff luck to that person that the members have voted for. This IS a show stopper in my opinion

The number of positions available at an election can't be a secret to be decided by the Board after the election is run. Our new Constitution will not allow that because the election process must be acceptable to the Australian Electoral Commission (AEC). Also, the Board do not run the election process now and nor will they in the future because that would not be acceptable to the Members or to the AEC.

Chances are we could get 5 or 10 members nominating for election. An election each year will typically be for 2 directors. The ballot by members will determine who is elected just like now. For the NSW/ACT region now there are often 5 candidates nominated and only 1 or two seats available. That is a very good thing compared with elections with one or even no candidates as has happened.

 

If we have 7 directors, each election is still going to be for 2 or max 3 seats. It is still going to be tough luck for whoever got the 4th, 5th or 6th most members' votes.

 

I don't see how people get to the position where the Board cannot be trusted to do anything other than look over the CEO's shoulder. We have a Board because we can't run RAAus with 10,000 members having a say on everything. Why have a Board and not let them do anything? Is it because we had a dysfunctional Board in 2012-13? Isn't that what drove the reform process to this point? To get RAAus onto a more professional footing than was the case in 2012? We need to have a capable Board but we don't need a lame duck Board with no authority to do anything.

 

 

Come 1st of July 2016 (assuming that's the day of registration), I nor any member will have any right to make the board disclose any of the "books" from RAAus Inc from the 2015/16 year.

Again Rhys, I refer you to the absolute power of the members of any corporation. All power is in their hands they elect a Board and can dismiss directors in an ordinary general meeting. They can vote directors in or out. That is the representative democratic model at work.

 

 

Don you keep referring to a board of 5 and yes the proposal is for between 5 and 7. Who and by what way and when does it become 7

When the Board uses its power under the Constitution to increase it to 7.

 

 

. . . The Raaus should use this site as a means of getting members thoughts and opinions...because it has the largest cross section of RAAus members outside of their own database . . .

Ian, So, RAAus sends newsletters to the 95%+ of those on their database who have registered an email address and offer information and request feedback is not enough?

 

Don

 

Ian, do you find that magnificent ghost owl looking down his nose at you intimidating?

 

p.s. I know I do. He looks so wise and in control.

 

You should be thanked and congratulated on allowing this debate free reign. The debate has been robust but very little in the way of attacking the person rather than the idea.

 

But, I'd be getting more sleep if you did decide to shut it down

 

 

As a member I would expect nothing less... However as the proposed constitution stands, we the members have no way to ensuring such actions are taken once the constitution gets up.

That's because we will be in the initial/transition stage. It is kind of a chicken and egg process. We could have an AGM in say Oct 2017 but it can't be for RAAus Inc because it has morphed into RAAus Ltd. And it can't be for RAAus Ltd because it would only be a 2 or three months old.

In essence you would be relying on the goodwill of the Board to host a meeting primarily directed at the workings of an entity that no longer has a corporal presence. This will always be the case when any incorporated association gets big and national and morphs into a more grown-up form of incorporation.

 

Of course your "we the members" were the members of RAAus Inc and also form the initial members of RAAus Ltd. The members have absolute power in any corporation of any form. It would only take 100 out of 10,000 (1%) members to demand a General Meeting of RAAus Ltd. and put questions on notice for the Board to answer. You could even put forward a special resolution to change the constitution to be whatever you want it to be as long as you can get support for that. But you'd have to be prepared to contend with the people who work on suspicions and speculation rather than fact or logic. (You Rhys, are definitely not one of those sort of people.)

 

Once we get past the complexities of the start-up phase, things are simple and will work well.

 

Don

 

 

That would be "currant bunfight". You just can't trust spellcheck to get it right!

Or were you thinking of, salivating for, a currant-bun fight?

I thought Oscar's grammar was correct as in the current (of the moment) bun-fight as opposed to a food fight outside the tuckshop.

 

Clearly I didn't get enough sleep last night . . .

 

 

Don, my point is the resolution calls for the election to bring the number of directors to 5. Our constitution (new) dictates how directors are elected. The resolution does not override that process (i.e. At the AGM).

Rhys,

I can see where you are coming from but I disagree, not in opinion, but in fact. The key thread of logic:

 

• The Constitution requires at Cl 36.1 for either 2 (or 1) directors to retire at each AGM.
   
   
  
• The Constitution at Cl 20 allows up to 18 months for RAAus Ltd to hold its first AGM so the first AGM for RAAus Ltd will be late in 2017, after the end of the Financial Year.
  (this is exactly the same provision as in the current constitution for RAAus Inc. and is dictated by the Act)
   
   
  
• The election to increase director numbers to 5 is an obligation on the initial directors of RAAus Ltd imposed by the SR.
   
   
  

 

 

If you want to argue that the Special Resolution of RAAus Inc does not override the Constitution of RAAus Ltd, then the election to bring director numbers up to 5 could be ignored by the initial directors and there would be no need for any election until the one required by the Constitution in connection with the first AGM to be held in late 2017.

 

You can't have it both ways, either

 

• the Special Resolution is binding on the initial directors and there has to be an election in 2016 to bring Board numbers to at least 5;
  or
   
   
  
• the Special Resolution is not binding on the initial directors of RAAus Ltd and the first elections for RAAus Ltd will be in connection with the first AGM in the latter part of 2017.
   
   
  

 

 

Personally, I can't think of a single reason why anyone would not happily go along with the Special Resolution as written and approved by 75% of the members who vote. I imagine the 10,000 initial members of RAAUs Ltd would take a very dim view of any Board that chose to ignore the Special Resolution.

 

 

Don are you saying that not one of the members posts here are valid enough to stop the vote and get it right first. If just one member has a valid point then the vote should be stopped and amended for all valid points. You have admitted that it isnt as good as it could be so make it as good as it could be first...simple yes or no will suffice

Of course, a simple answer to a complex question might suit you just like it would Perry Mason. Bit, I'm not going to fall that lawyer trick.

All I can do is reiterate what I said above, there is nothing in what has been raised here that I think is a show-stopper.

 

I'll go a little further and refer you back to the 10,000+ words I've written on here where I've attempted to explain the decisions the Board has made to get to where we are now and see if I've agreed to any significant change being necessary before the vote.

 

A difference of opinion does not make a document invalid. Something in the draft that, if adopted, would cause the constitution to be inoperable would. Just saying you don't like some aspect doesn't make a person right. We were democratically elected to use our judgement to propose reforms to the Membership for their consideration. I've been elected twice on a pro-reform agenda and I'm not going to step away from reform that until it is achieved.

 

Don

 

 

Don are you saying that not one of the members posts here are valid enough to stop the vote and get it right first. If just one member has a valid point then the vote should be stopped and amended for all valid points. You have admitted that it isnt as good as it could be so make it as good as it could be first...simple yes or no will suffice

Ian,

I've also said that I haven't seen anything that I would class as a "show-stopper". Letting "perfect" stop us from making a bloody good start on reform after more than 4 years of delay sounds like a very good move to me.

 

The overall strategy is absolutely the best way to go and there has been little debate about that. Reasonable commentators have come up with things they'd like to see different and that is absolutely their right. If we had feedback from 500 members instead of perhaps 20, we could find many, many differences of opinion on the details. What I'm certain of is that the proposed reform takes us a long way ahead of where we are now and that, guess what?, I'll be voting in favour of progress NOW instead of more delays.

 

 

I have been away doing some work hence a lot of time has not been utilised checking the happenings on the forum. However I have put a lot of thought to the issues and this post from another board member solidifies my thoughts on certain issues. So this proves a lot of members are aware this "Yes" is a manipulation.

And how do you feel about it now Keith, now that you know that most of Rod's post was wrong in fact and therefore misleading?

 

Remember there are some gag restrictions on board members however one member has broken ranks.

As I've shown in another post, the unreasonable restrictions that Ian referred to as a "gag" order were lifted by the Board, after Ian left the Board, in September 2011 at my first Board meeting. Say it as often as you like, Keith but there is no "gag" on Board Members speaking there mind on matters that any reasonable person can see is not confidential in the ordinary sense.

 

We have been told by Don that the board is rock solid on "Yes", ????????.

When I wrote that there was no evidence to the contrary. The views and factual errors written by Rod, after the closing time for changes, was the first anybody on the Board had heard of them. If he had put those thoughts to the Board, the factual misconceptions he was labouring under could have been corrected for him. Instead he went solo and published that email with its misleading, inaccurate statements.

 

To me it looks like Don has been vested the duty by the board to push the "Yes" vote in doing so Don has enlisted the help of a few buddies to push "Yes" as well.

Keith, as I have stated many times now, the views I express on here are my own personal views as an ordinary member and not as any kind of Board spokesperson. That they coincide with the unanimous (until yesterday) view of the Board is kind of predictable. Nobody has delegated to me the task of arguing the "yes" case. What I've been trying to do is to dispel the inaccuracies and misconceptions that have been put here, many quite genuine, a couple just stirring the pot and a few that are, at best, "cynical".

 

Another point has been mentioned to me - by having a smaller board that will get rid of the dead wood from the board. Now? One meaning of "Dead wood" we all know however the other meaning, Is it a disguise for those who are not partaking in the party lines which is a "yes" in this case.Looks like the smoke screen is falling down.

Firstly, that assetion is unfounded, no better than scuttlebut and beneath contempt. WE have a Board of very long serving members and some with shorter service but high energy. To suggest that any of these unpaid volunteers, who give up a vast amount of time to serve the members of RAAus, are your words "dead wood" is very uncharitable especially from those who like to sit in the grandstand and take potshots.

Even by your own assertion there is only one Board Member who has "broken ranks". We have a Board of 13 and we are moving towards a much more sensible number of max 7. Going to all this trouble to get rid of one particular Board Member is just not credible.

 

Reducing Board numbers is probably the one part of the reform proposed that has virtually no opposition from anyone other than, it seems, you and Rod.

 

What the Corporations Law requires (not the Constitution and not the Incorporated Associations Act) is for a report to be given to the ordinary members on the performance of individual Directors. Perhaps a current Board Member who rarely participates in Board discussions either at all or until well after closing time might be apprehensive about that level of scrutiny of their Directorship?

 

 

Thanks Rod, it is nice to know that we both have similar thoughts...members first

I would have thought that putting members first would involve giving them factual information to support their argument not misleading them.

 

 

Is this a rule written down somewhere? It's not in the constitution. PS Annual doesn't mean after 1 year. It means once a year, could be the start, at the end or in the middle.

Rhys,

Having an Annual General Meeting at the beginning of a year would be novel if not a first-ever for any corporation (incorporated association or limited by guarantee). The whole point of an AGM, in my experience, is to review the year gone by. Remember when RAAus Inc first kicked off under the current constitution it was allowed up to 18 months to hold its first AGM. This is dead standard practice and is as per the model rules in the Regulations to the Incorporated Associations Act. There is nothing unusual or untoward about it.

 

Would you be more comfortable if I said that we expect to hold a General Meeting of RAAus Ltd at around the same time as our usual AGM timing (Sep/Oct)? That meeting would see the induction of the newly-elected, extra Directors as required by the Special Resolution. It would also involve a review of the last year of RAAus operating as an Incorporated Association registered in Canberra. It would feature reports from the Executive and the CEO.

 

Don

 

 

I can't speak for the night owl, but suspect that is not what he meant and certainly not what I would have expected from the board. . . .

I understand what you are saying David, but the simple fact is that I can see no downside for RAAus in moving from an unsuitable form of incorporation to one that better suits RAAus and requires less administrative work for the Office. If there were some trade off I'd be happy to declare it. The only group in any way disadvantaged that I can think of is the Board in that they have to be more rigorous in the standard of governance. But, as a Board Member I relish that and I certainly don't see it as a disadvantage for the Ordinary Members.

 

Can anyone tell me of a disadvantage here?

 

Don

 

 

I must express my considerable disappoint with this email from Rod. The Board has been working on this particular proposal since early in 2015. In that time it has been discussed and approved by the Board without objection from any Board Member. The last occasion when the Board met face-to-face, the consultation draft that was to be presented to the information session at the conclusion of the AGM was presented to the full Board and again, there was no dissent. The information session at Bundaberg was broadcast over the net and was available for virtually every member who wanted to to participate in the discussion on the day or subsequently at their own convenience.

 

It is true of course that some important aspects including the Members' Charter had not been drafted by that time but the requirement for a Members' Charter was concreted into the draft Constitution.

 

To publish these concerns, at this late stage, after the period when changes could be made before the vote, and without ever recording these concerns with the Board, raises serious concerns about the bona fides of this approach. That there are significant errors in the document that a Board Member of Rod's very long service should not have made, is concerning. To publish such inaccurate comments neglecting to check your "facts" smacks of ordinary negligence and demonstrates a sub-standard understanding of either the current or proposed constitutions. A cynical person could be forgiven for thinking that the mass of errors were not mistakes but intended to mislead. Intended or not, until the true facts are known by members who received Rod's email, members are being misled. Rod is recommending to members to vote "no" based on things that are demonstrated below to be factually inaccurate.

 

To publish a document that had not been seen by any Board member other than the author has resulted in numerous misleading statements being made that could easily have been corrected before it was sent out.

 

. . . A group of RAAus members have been working on a proposed draft constitution that it will be placing before its members on 14th May 2016. This change in then RAAus constitution is the most significant change we have considered since then AUF changed is structure to RAAus some years ago - its an important document! 

 

As with all legal documents every sentence is important and every paragraph and subparagraph needs to be very carefully written and understood. The work that has gone into its creation is considerable and as an organisation RAAus should thank all those involved - it was a lot of hard work.

Rod, you can not make out that you had no part in this document. It was drafted on your watch and presented to all on the Board in face-to-face meetings and via the Board Forum with no adverse comment from yourself.

 

 

For acceptance any constitution should not have any problems or issues. I submit there are still current, real, remaining policy and administrative issues with the proposed constitution that should be resolved before it is accepted by RAAus members on 14th May 2016.

If this is the case why did you leave it this late to raise these issues? Would it not have been better to have had the discussion within the Boardroom and then present a document to the members that you could fully support and that was error free? I've only been on the Board since the lead up to the October 2015 AGM but I have never seen any concern of yours in relation to the reform proposals.

 

RAAus CONSTITUTION - THE VOTE NO CASE. . . On many important issues the proposed constitution remains silent. This leaves many issues unresolved, with the possibility of adverse rules being introduced without RAAus member approval. There are a raft of problems with this issue. These matters should be resolved, with the approval of RAAus members, before the new constitution is introduced as law.

As you certainly know Rod, there is no possibility of "adverse rules being introduced without RAAus member approval." You know that to introduce any rule into the current constitution or the proposed reformed constitution Acts of Parliament (not constitutions) require that 21 days' notice of a proposal to move a motion for a Special Resolution is required to be given to members and that for the motion to be passed, at least 75% of the members (present or by proxy) voting in General Meeting must approve the motion for it to be adopted by RAAus. You even mention this requirement below when arguing against the 75% pass mark. So if you knew that, why make the misleading statement here?

 

Regional Board member representation will be lost if the proposed constitution is introduced. There will be no local Board member, no one to call, no one with any ability or authority to effect change, and no one to work with local authorities on any matter that may affect RAAus. This is not not a step forwards.

Regional Representation can actually be a disadvantage. For example in a less populous region, at best voters get to vote only once every two years and only for 1 of the 13 Board Members. If there is only one candidate they don't get to vote at all. Under the proposed reform, members in a all regions get to vote for all candidates and with only 5 to 7 on the Board, it is highly unlikely that anyone would get elected unopposed as happens very frequently now. As aviation law and regulation is national not regional, and communication costs are a fraction of what they were when the current RAAus constitution was written, there is no great need for regional representatives. It is very easy to just pick up the phone and speak to whoever in RAAus you need to speak to.

 

If passed at the meeting, the current Board will be removed. The new Board will consist of only 3 persons (The President, Secretary and the Treasurer) until elections are called to top up the new Board (to a minimum of 5 persons). This action does not represent good governance of our organisation and should not be supported.

This I suggestion is a distortion of what will actually happen. If the Board is to be reduced to a sensible number, and having as many Board Members as employed staff is not a sensible number, not all of the 13 current Board members can be members of the new Board.

Currently, for all but a few of days per year, RAAus is run by the Board Executive of President, Secretary and Treasurer. The people who occupy these positions (not necessarily the people who hold them now) will be the initial Directors who sign the paperwork to facilitate the move from one form of incorporation to another. That is just practical. Next, as soon as is practical after RAAus has settled into its new form of incorporation, the initial Directors must call an election to build the number on the Board from 3 to a max of 7. If RAAus operates in its new form of incorporation from say, 1 July 2016, then notice of elections, calling for candidates and conducting votes and counting can proceed virtually immediately. In any case the initial Directors are obliged to run the election as soon as is practical. As you know the process of calling elections through to seating the people elected takes several months under the current constitution. It will not take any more or any less time under the reformed constitution.

 

With 5 to 7 Directors and modern communications, there will be no need for a Board Executive and no mention of one in the reformed constitution. Whereas now RAAus is governed by 3 Directors (the Exec) under the reformed Constitution it will be governed by 5 to 7 Directors . . . all year round. There will be more Directors in oversight with 7 on the Board than there was with 13 on the Board.

 

In terms of accountability, the proposed constitution reduces the minimum number of general/board meetings that members can attend from the current two (23iv) to 1 each year. The first AGM under the new constitution is proposed to occur in October 2017.

This appears to be a deliberate distortion as well. Rod appears to be mixing the transition arrangements with the ongoing arrangements to make out there will be fewer General Meetings each year and the right of ordinary members to attend Board Meetings halved. Rod would know that I signed the Special Resolution that created the obligation for the RAAus Board to have an additional General Meeting each year approx 6 months after the AGM. Exactly the same provisions that are in the current constitution carry over to the reformed constitution. RAAus Ltd can't have an Annual General Meeting until it has been operating for at least, guess what? One year! This appears to me to be a quite cynical attempt to make something look worse than it is.

Perhaps Rod, you should have a read of Cl44.2 of the reform constitution which requires the Board to meet face-to-face twice per year. There is no reduction in the number of Board Meetings members can attend. Accident or deliberate misleading?

 

The current executive will not face any election for an additional 18 months term (on top of their current term) which raises the issue of having a self nominated executive moving to paid positions with no accountability in terms of an election until October 2017.

Either Rod has not read the reformed constitution or is making a statement deliberately intended to mislead. The reform constitution does make a provision for Board members to be paid fees for Board Meetings however, no fee can be paid unless it has first been approved by the members in a General Meeting. Directors, initial or otherwise cannot, as Rod falsely suggests, be "a self nominated executive moving to paid positions with no accountability in terms of an election until October 2017". I'm having great difficulty to see that this misleading statement is not intended.

 

The Board will be reduced from 12 to a maximum of 7. This was proposed as a way to save money. The current RAAus Board is made up of volunteers who meet together twice a year, the new Board will be paid positions and meet as often as they chose - there will be no cost savings.

This presupposes that Directors will ask to be paid fees and that the Members will agree to pay fees. There is nothing, as Rod knows full well, automatic about Directors receiving fees. Rod now seems to be arguing that we should stick with 13 on the Board which I have not heard anyone else endorse except one Board Member who might not be elected in a tighter poll.

 

An individual or incorporated body can become a RAAus member (11.2) yet only members who are natural persons shall be eligible to vote (29.0). This represents a poor policy position and is clearly unfair. All members (club, school or private) who are financial and are bound by the rules of the organisation should be entitle to a vote. Also all members should be able to bring resolutions forward should they so wish. This will not be the case as defined in the new constitution (27.1). If you are an RAAus club or flying school and you pay the required membership fee, you should have the right to have your say and a vote.

If it is unfair that only natural persons can vote, then it was unfair under the current constitution. Perhaps Rod is just worrying that he could have three votes, one as a member, one as an importer and one as a FTF operator? Not going to happen Rod. You'll only get one vote like you get now. Perhaps if Rod was serious about good governance he should have declared his vested interests as an importer and FTF operator?

 

The proposed constitution states (17.1) that RAAus shall have the right to “discipline” its members. Our new constitution should be a reform document. We really do not need this provision included in the constitution in the way it is, particularly when the Board and RAAus members have not signed off on what the disciplinary powers will be.We have no need to follow CASA along the path of defining every mistake as a breach of the regulations, and that every breach should be punished with a penalty.

Perhaps Rod has forgotten about the requirements that Part 149 places on an organisation like RAAus to have a disciplinary procedure? Part 149 has not been enacted yet but it has been promised by CASA for 2016 and RAAus needs to be compliant. The release of the draft Dispute Procedure has been delayed until it is thoroughly vetted to ensure it fits RAAus culture and is acceptable under Part 149. "Disputes Procedure" rather than Disciplinary Procedure because all issues in this area start as disputes but not all finish with disciplinary action being taken.

 

With the current RAAus membership, 100 members will be the minimum number of members needed to call for a general meeting. Realistically future constitutional amendments by members will be difficult to achieve, due to the number of supporting RAAus members required to make a change. The bar remains set too high.

Firstly, we don't need to call a General Meeting to move a Special or Ordinary Resolution. Any member may move such resolutions and they only require a seconder for them to be put to the members for a vote.

Secondly, it was a Special Resolution moved by myself that had the minimum number for an ordinary member to call a General Meeting from approximately 500 members to 100 members. It was this SR that facilitated calling the GM at Queanbeyan in 2013. The provision in the reform constitution is exactly the same as in the current constitution. Odd that if Rod was familiar with both the current and proposed constitutions he would have known that and wouldn't have written what he has here. Perhaps he isn't all that familiar with the two constitutions just nervous about possibly losing his seat?

 

A further restriction to future constitutional reform will be in place with at least 75% of the votes cast by members required (para 65.0) to pass a special resolution. Allowing the current proposal to proceed with a plan to “fix it later” will be a challenge due to the high acceptance required for any future amendment.

Oh dear, looks like Rod hasn't read the Associated Incorporations Act or the Corporations Act. Can't blame him for that, they are not what you would call "page-turners". I once tried to change the 75% down to two-thirds but had to rip up the Special resolution because I discovered that the 75% is set by the Act and nothing in a Constitution can go against the provision in the Act. To save you diving for copies of the Corporations Act, I can tell you it requires a 75% pass mark as well. Another fail because Rod has been quoting problems that don't exist and solutions that are not necessary because the problem does not exist.

Incidentally, about 20 Special Resolutions that I proposed over a couple of years received the 75% pass mark from the members. It seriously isn't that hard if you are proposing something that the members agree is sensible.

 

. . . There is no need for to be rushed here. A revised RAAus constitution is needed, however the proposed constitution is not ready to be approved by RAAus members. It's clearly not as it should be, a wise revision is needed. There are no urgency issues here. A vote for caution is required, a NO vote is recommended.

So, you are being asked to delay the reform process on a series of false premises as demonstrated above.

Perhaps now you can see why I get a little tetchy when people who should know better knock the reform on the basis of a considerable number of misleading statements.

 

Rod, will you now send out another email to all the people you have misled and correct the errors that have been shown to exist in your mail out? Or are you happy to leave them relying on your misleading statements?

 

 

. . . However, I still wish the Board had seen fit to put forward the case against the proposed changes so that we all had the opportunity, if we wished, to make a fully informed decision. (Don, that can still be done.)

gandalph,

What I have posted here is not the Board's case "FOR" the proposed reform.

 

It is strictly my independent, personal opinion and facts that come from my research and accumulated knowledge.

 

As I strongly support the need for change, I feel under no pressure, personally, to put a NO case forward. I couldn't do it because I can see no logical case for not making this very substantial step up from our current weak, inefficient structure.

 

The Board I'll leave to speak for itself but it still doesn't make any sense for me for the Board to derive a strategy for reform and then argue against it.

 

 

. . . and of no interest to ASIC. Our board's behavior would at all times rank well behind a whole conga line of dodgy companies, charities and trusts.

In the ordinary course, ASIC is not likely to be looking over our shoulder day to day - they don't even do much of that with big, dodgy companies preferring, so it seems to me, to wait until the battle is over and then go in and bayonet the wounded.

But, if the sort of letters that we wrote to the ORS lobbed into ASIC, I can't believe that they could write back and say to sort it out yourselves. The ORS is intended to sake a soft approach because with small, local (not national) sports clubs (their typical "client") the level of expertise on the Board is expected to be somewhere between bugger-all and none. I actually don't object to that approach now even though it was galling to discover it at the time. It is one of the principal reasons for getting a national registration with the opportunity to go to ASIC if all else fails.

 

Don

 

 

I agree with this but what I disagree with is that board member is gagged in that he can't go back to the members and say he put x argument forward but the board decided against that argument because of yBoard members have to sign a gag order, as I had to when I was on the board in order to show unification to the members thus keeping the members in the dark to alternative arguments that they may in fact agree with

Allow me to clarify the confidentiality issue, Ian.

 

There was an utterly unreasonable "Board Confidentiality" agreement that Board members were required to sign back in your day on the Board. It came about, I was told, because the Board leaked like a sieve. The "Agreement" was outrageous. It had required a unanimous Board Resolution for any matter that had been discussed at a Board Meeting before it could be given wider circulation. How they thought that was going to stop unauthorised leaks I have no idea.

 

In my campaign to be elected to the Board in 2011, I made it perfectly clear that I would never sign such an agreement. John McKeown, to my knowledge, was the only other Board member prior to Sep 2011 to have refused to sign that "Agreement" but you may have refused as well, I don't know. The first order of Business at the Sep 2011 Board Meeting was to ditch the gag agreement and it was ditched. In its place was an honest agreement to maintain ordinary Board Confidentiality. That agreement was totally superfluous in my mind as all it required was what is ordinarily required: if, in the ordinary sense of the word, the matter is confidential, it should be kept confidential. You should not be on a Board if you can't work out whether a matter should be treated as confidential or not.

 

There is no unreasonable gag order on any member of the Board right now, nor has there been any since Sep 2012. If somebody has told you otherwise they have misled you. What you may have identified as a gag order is the requirement for only the President or the CEO to be the ONLY official spokespersons for the Board. That is a critical rule to avoid miscommunications or conflicting communications to the members or the press. To have it any other way would be a recipe for utter chaos.

 

As I've said on here many times, what I write here is as Don Ramsay, not as Don Ramsay, Board Member or as Treasurer. I think the lengths I've gone to on here gives the lie to the idea that I am somehow gaged. I do not speak for the Board here. I have no authority to speak for the Board anywhere.

 

What comes out of a Board Meeting are the Minutes of the Meeting setting out the decisions that were made in the form of Board Resolutions. That is what is important. Board Members must be allowed to debate, in private, the issues that are put before the Board. A Board Member needs to be free to start the discussion with one point of view and be persuaded to another (or not) during the Meeting. In the end the only thing that matters is that the Board has made a decision and that decision is recorded as a Board Resolution.

 

Personally, I think it inappropriate for a Board Member to push a line that goes against a democratic vote by the Board especially if it has never been raised in a Board Meeting.

 

Don

 

 

Again with the Agro DR. If we are not happy to vote for the proposed Constitutional change as it is presented we are keyboard warriors and want a return to the bad old days.

Geoff, please have another read of what I wrote. I certainly meant no offence to you and believe what I wrote contained none directed at serious thinkers like yourself. I used the pejorative "keyboard warrior", in the singular, as a bit of a dig at our all-time most negative poster and RAAus non-member. Looks like I got caught out trying to be clever.

My comment was:

 

. . . I will be very comfortable to leave it to the the multitude of members and the odd non-member, keyboard warrior who better understand what is needed.

I referred to only two groups being careful as always with the punctuation:

 

1. the "multitude of members";
   and
    
    
   
2. the "odd non-member and keyboard warrior".
    
    
   

 

 

If you are a member of RAAus, then you fit into the first category and if you are a non-member and a keyboard warrior, you could fit into the second category.

 

I can't see anything aggressive in referring to "the multitude of members" as we have member numbers approaching 10,000. Perhaps it would have been less contentious if I'd just written "members"?

 

I certainly meant nothing aggressive in saying I would be "very comfortable" to leave it to the members to do a better job than I've done. Simple fact is that if the Special Resolution is not approved, I will have failed in either the drafting of the proposal or in explaining the proposal - doesn't matter that much as to which if it fails.

 

Have you thought that maybe if people do not vote for the changes, then maybe they are simply not happy with the changes. I will be voting against the change not because I don't think change is needed, but because I am not comfortable with the proposed changes as written.

Geoff, of course I understand that any member voting against the proposal is not happy with it. Could there be any other reason? As to why they are not happy with it is a question that would generate a lot of different answers. In the past I have banged on about the fact that RAAus is a representative democracy and it would be completely illogical to resent a democratic decision. Doesn't mean I wouldn't be disappointed. My disappointment would come not from members voting the reform down but if they did that for the wrong reason or if they lost a very good reform because it wasn't perfect. It is the latter that concerns me most.

 

And further disappointment because I get the feeling that if this proposal falls short of the 75% majority it needs that reform of RAAus will go on the back burner or even worse, in the "too hard basket". After plugging away for 6 years to get RAAus from a basket case to something that is robust and self-sustaining, I feel I've run out of steam and I seriously doubt I could muster the enthusiasm to commit the time and energy to have another go at it. Hence my comment about being happy to leave it to others.

 

In saying that it would be a shame to lose a very good reform because it's not perfect, I'm not suggesting that "near enough is good enough". But it is possible to deny yourself something that is a very significant improvement for the sake of it not measuring up to "perfect". I've proposed 25 Special Resolutions in the past and it is not that difficult to get one up if it is sensible (and not too complex). A very good constitution can be tidied up. The constitution we have now is well beyond economic repair - it is a knock-down and rebuild job.

 

So, voting it down because it could be better is a perfectly legitimate thing to do. You just have to be sure that you are prepared to step up and make the improvements or face the risk losing the reform altogether. It is a democracy, it is up to you and your best judgement.

 

 

Unfortunately, F (FFS) T has achieved his usual aim: say anything outrageous and attract as much abuse as possible. A weird but effective strategy.

 

As a fellow masochist, I put myself in the position to attract insults from F(FFS)T by demonstrating leadership and vision for a better future when he knows ALL members of RAAus really only want people on the Board who have zero initiative and are just sitting around waiting to be told what to do.

 

Isn't that so F(FFS)T?

 

But I jest of course, the question will not arise because the Special Resolution will be affirmed on 14 May. There is no way that the vast majority of RAAus members want to return to 2013 where years of poor governance had RAAus on the brink of extinction with recreational aviators staring down a chaotic and uncertain future.

 

If, in the extremely unlikely circumstance the democratic process rejected the proposed reform I would readily accept their decision and walk away happy in the knowledge that *I've* done what I can. It may or may not be the end of the push for a more robust RAAus but I will be very comfortable to leave it to the the multitude of members and the odd non-member, keyboard warrior who better understand what is needed.

 

 

Rhys,

 

Not much point continuing to discuss the legality of what has been proposed is there, really? We've been over this several times and the facts are still the same:

 

RAAus asked qualified, professional corporate lawyers how we should do the transition from Inc to Ltd. They gave us advice and we are following it.

 

Would it be responsible or even defensible to override the legal advice RAAus has paid for in preference to the opinion of a nom de plume we read on an aviation internet forum? How would that look in a legal dispute?

 

I've done two years legal studies at University (more than half of that time on Corporations Law) and I've participated as Company Secretary in a billion dollar corporate group restructure for a large multinational with excellent advice from Allens (Allen Allen & Hemsley at the time) and all that that helps me to understand and question legal advice but I wouldn't say that I know more than the people for whom this is routine.

 

Rhys, I know from your posts you are serious and a thinker unlike a some on here (eh FT?) but, seriously, next time somebody asks a question about the legality of what is proposed my reply is going to have to start with "FFS".

 

Regards

 

Don

 

 

Rhys,

 

Thanks Don, so is it the legal advice that the directors elected within 6 months as per the resolution are the initial directors with the former executive? If not then I don't see how any resolution can override the constitution (without replacing).

The legal advice is that the Special Resolution will achieve the relocation of RAAus from Inc to Ltd. Simple as that. We paid these people a substantial fee to be told how to do it and this is what they came up with. It makes perfect sense to me once you realise we are in effect just relocating what we do from one form of incorporation to another. It is not the clunky process many here seem to think it is. It is a smooth simple process. RAAus is not the first incorporated association to have done this. It is relatively common and the lawyers know how to do it.

 

So, no they are not initial Directors. The initial Directors are as defined in the Special Resolution. The Special Resolution empowers (and requires) the initial Directors to run a one-off election with the sole aim of electing no less than two extra Directors and to have it done t within a particular time frame.

 

If the Special Resolution did not require that one-off election, the Constitution would only require an election within 18 months of day 1 because from day 1 the Board has the Constitutional minimum of three Directors.

 

The Special Resolution does not override the Constitution it adds to it for a once-ever election.

 

We couldn't say for example in 2 years time pass a resolution for Don Ramsey term to be extended to 5 years without actually changing the constitution.

I think you could but firstly, it would have to be a Special Resolution passed with a 75% majority and secondly, my name would have to be spelled correctly . I don't remember enough Corps Law and can't be bothered looking it up to say such a resolution would be OK under the Corps Law but it would be OK as far as RAAus Ltd goes. It would be in the nature of amending the Constitution for a one-off change to the term of one particular Director. Can't imagine my going along with such a proposal or the members. So don't ask!

 

A Special Resolution appropriately notified and passed by at least a 75% majority of the members in General Meeting can do anything that is not otherwise illegal.

 

A better option would be to include the 2 directors as initial directors together with former executive, however this would require an election prior to the establishment of the new company.

Sorry, but I disagree on both counts. No, IMHO it wouldn't be better and no, factually, it wouldn't "require an election prior to the establishment of the new company".

When you think of it, RAAus Inc is currently run by three Directors between General Meetings, a period of 6 months. What would be different about three Directors running RAAus for between 3 and 6 months? With 5 Directors and no Executive, we will have more Directors on the job than is the normal situation now.

 

And it wouldn't require an election, just the Special Resolution being written to accommodate such a scheme.

 

The Directors elected within 6 months of the transmogrification (I was amazed to find this is a real word) are elected under the transitional arrangements defined in the Special Resolution:

 

that the President, Secretary and Treasurer of Recreational Aviation Australia Incorporated shall be the initial directors of that organisation on registration as a company from the date of effective registration of Recreational Aviation Australia Limited by the ASIC. Those directors shall cause an election to be called as soon as is practical, and in any case no longer than six months after the end of the 2015/16 financial year, to bring the board size to no less than five members;

 

This requires simply that an election is held for one purpose - to raise Board numbers to "no less than five members".

 

 

Don, has the board been given legal advice regarding these resolutions? I fail to see how a resolution of the assosicstion can override the constitution of the new company. Any resolutions passed prior to the assosicstion being wound up would have no legal effect to the new company..

Yes, we have had total legal support from some highly qualified and experienced lawyers. As evidence of that, the Corporations lawyer rewrote our Special Resolutions in lawyerese including the latin bit that had us all diving for Google to know what "mutatis mutandis" means.

 

Seriously though, I see what you are saying. RAAus Inc in General Meeting is directing its successor RAAus Ltd to adopt the Constitution approved by the members of RAAus Inc. How can one corporation direct another corporation to do anything?

 

In law, RAAus Inc and Ltd are the same corporation - just registered by different bodies under different legislation. The process goes something like this:

 

• In passing the Special Resolution, the Members of RAAus Inc direct the Board of RAAus Inc. to execute a transfer process under s82 of the ACT Act:
  (1) An incorporated association may apply to the registrar-general for permission to apply for registration of the association under the Corporations Act as a company limited by guarantee.
   
   
  
  Note: Under this Act, we are not talking about 2 different corporations we are effectively talking about re-registering a corporation under a different piece of legislation.
   
   
   
   
  
• With the approval of the ACT, RAAus Inc applies to ASIC for registration of RAAus as a company limited by guarantee. It is more of a relocation exercise rather than one dies and another is born. So, a constitution approved by RAAus Inc can apply to itself in a different form of incorporation as RAAus Ltd..
   
   
  

 

 

 

 

The constitution implies directors are elected at the Annual General Meeting, and that their term starts at the conclusion of such a meeting. It's my belief if we require an AGM once the new company is formed to meet the constitutional requirements.

The Constitution does require Directors to be elected at the General Meeting. How that works in the real world is that the election process happens before the AGM and the people elected take up their directorship at the end of the AGM. That is the ongoing situation after the initial formation. There are two stages here, initial formation and ongoing. The initial formation is governed by the Special Resolution. The ongoing phase by the Constitution. The reason for the Special Resolution is to set out what happens in the peculiar, one-off situation at the beginning and the Constitution takes over once the corporation is set up and running as directed by the Special Resolution.

 

If you look at the old RAus constitution it requires a first AGM with in 18 months of incorporation and then one every year within 6 months of the end of the financial year. Exactly the same applies for RAAus Ltd. This recognises that there is an initiation phase and a continuing phase.

 

The initial Directors and the initial members of RAAus Ltd are established by a Special Resolution that has the same power as a term of the Constitution. The Directors to be elected before 31 Dec 2016 are similarly enabled by a Special Resolution. The first "General Election" happens because of the continuing rules of the Constitution.

 

There is thus no need for an early AGM. And there is no desire for an AGM (if it could be called that after say 6 weeks). We need some continuity of Directors to finish the initial phase and get the corporation up and running. After that the Constitution rules, OK?

 

--------------------------------------------------------------------------------------------------------

 

For reference:

 

Associations Incorporation Act 1991 ACT

 

Part 6 Transfer of incorporation

 

s82 Voluntary transfer of incorporation

 

(1) An incorporated association may apply to the registrar-general for

 

permission to apply for registration of the association under the

 

Corporations Act as a company limited by guarantee.

 

(2) The registrar-general must give an incorporated association

 

permission to apply for registration of the association under the

 

Corporations Act as a company limited by guarantee if—

 

(a) the association has, by special resolution, resolved to apply for

 

registration of the association under the Corporations Act as a

 

company limited by guarantee; and

 

(b) an application lodged with the registrar-general by the

 

association under subsection (1)—

 

(i) is signed by the public officer and 2 members of the

 

committee of the association;

 

(ii) is accompanied by any prescribed documents; and

 

(iii) includes a statement to the effect that the special

 

resolution referred to in paragraph (a) has been duly

 

passed by the association.

 

 

Thanks Don so my interpretation is correct in:"the Directors control just about everything, from the number of directors (refer 34.1), HOW directors will be appointed (refer 34.4) right through to who THEY will choose (the directors will choose, not the members) to fill a casual position (ref 34.6)"

Short answer is "no they don't" in the unfettered sense. We operate, as do virtually all organisations, a representative democracy. The Directors of the Company are elected by the members to run the show and so the only people who have anything like absolute power are the members. They elect the people who do the work. That's the point of having Directors - to do the work between elections. That's how any modern democracy works.

 

But, even the members have to have regard to the Corporations Law, CASA and Procedural Fairness, Natural Justice and any number of other controls. Nobody gets to "control just about everything" unchecked and without being held accountable.

 

in that:34.1 The Company must have at least three (3) and no more than seven (7) Directors.

- The directors will decide whether we have 5 or 7 directors, not the members

That's what it says. It gives the Board the discretion to decide if 5 (cheaper) works OK then go with 5. If that's found wanting go with 6 or 7. Not what I would call a huge amount of latitude. In any case, whether it is 5, 6 or 7, any one will be more cost-effective and efficient than 13 Directors!

 

34.4 Subject to the Corporations Act, the Directors may from time to time determine the process by which Directors shall be elected and re-elected by the Members in General Meeting. Any voting method employed for the purpose of electing Directors shall be consistent with those methods accepted by the Australian Electoral Commission or an equivalent body.- The directors will decide the process by which directors are elected and re-elected, not the members

Exactly as happens now under By-law 1 except that the new Constitution has the extra control that it must be a widely respected process approved by the AEC. Not the case for RAAus In. How could that not be better than the current situation? Under the new Constitution the controls on how Boards run elections is tighter not more in favour of whatever the Board wants to do.

 

34.6 The Directors may appoint a person as a Director to fill a casual vacancy if that person is eligible under Clause 36.- The directors will appoint new directors themselves to fill casual positions, the members won't have a say in it

No, the members will have a say in it - at the next election between 1 and 12 months away and if they don't like the appointment they can take out their displeasure on the Directors who made the appointment. In the relatively rare circumstances where the Board appoints a Director to fill a casual vacancy the Director so appointed would have an average term of less than 6 months. Under the current Constitution if there is less than 6 months to go there does not have to be a By-election. Which is a better practice? This is an entirely normal practice in most corporations especially ones that are cost conscious. Even large Corporations like BHP operate on this basis. Haven't heard them criticised for malpractice on that basis anytime in the last 50 years.

 

 

Sorry Don, but now you are really off the ball with no right of appeal here...that is what the moderators as a collective are for.

Clearly I have misunderstood the process for disciplining contributors to the site. For some reason I thought that you as the owner of the site had the absolute authority to ban anyone you wanted to. My mistake. How you say it works makes perfect sense.

 

. . . Why would you come on here to push your agenda and attack the site . . .

I was not intending to attack the site by my few words "No right of appeal" - I was simply stating what I thought was a fact. It is good to know that I was operating under a misconception.

 

The main reason why board members don't come on here under their own name is that it is made very clear to new board members that they can not say anything here about RAAus and in fact that was reiterated to me in a recent meeting with the President and CEO.

Looks like I'll be in trouble then!

 

Of course nobody can speak for RAAus other than the President (as directed by the Board) or the CEO (as directed by the President) and I made that point clear on here quite recently. While we have an obligation to respect Confidentiality, we are able to assist forumites with clarifications if they are operating under a misconception. We can even express personal opinions as long as we are not going counter agreed policy and express them as individuals not as a Board Member.

 

Also how can you quote figures about who is here and the number of RAAus members that are here...do you have access to the site's database, I don't think so...so whilst you are stating numbers as fact you are only guessing and an example of misleading members to the realms of pure fiction.

Agree completely that the numbers I stated were as you say, guesses, but I think I did declare that what I was saying was speculation. Happy to have my guesswork replaced with reliable statistics. It was not the exact numbers that were important it was the principle that all RAAus Members should have equal access to "official" information from RAAus. What I write is of course not "official".

 

Now, if you choose to post on this site then please do so with common decency for the site/resource and respect for its members which you have no idea who is reading the content and what they are reading and all will be good.

I am obliged.