 Conflict between Standing Resolution #27 and the Constitution |
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From: Brett Davis To: info@shoalhavenbushwalkers.com Subject: Conflict between Standing Resolution #27 and the Constitution Date sent: April 9, 2025 |
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Hi SBW committee, I have a potential dispute with the SBW committee about Standing Resolution #27 which I believe is not allowed under the SBW constitution. Standing Resolution #27 is shown below. "27. The Model Constitution’s* Sub-rule 43 (4) is considered to be read in to the relevant provisions (Rule 22c, Rule 23i and Rule 47) of the SBW constitution, thereby providing the committee the power to refuse members’ access to a document to which it considers the Model Constitution’s Sub-rule 43 (4) to apply. * Model Constitution for Associations Incorporated in NSW (2022 revision). Passed 14.5.2024" (Could the committee please explain what "read in" actually means? I can't find any relevant definition of it anywhere.) The Associations Incorporation Act 2009 includes a list of 17 matters which must be addressed in an association’s constitution. This list is called Schedule 1. Item number 15 in Schedule 1 is "Inspection of books etc." In the SBW constitution, this required item is referenced in Rule 47 - as shown below. "47. Inspection of books etc The following documents must be open to inspection, free of charge, by a member of the Club with notice at any reasonable hour: a. records, books and other financial documents of the Club b. this constitution c. minutes of all committee meetings and general meetings of the Club" As shown in Standing Resolution #27 itself, item number 15 in Schedule 1 "Inspection of books etc." is also referenced in the SBW Constitution's rule 22c and Rule 23i, which are shown below. 22c. All documents, books, financial records, and reports of the Club shall be available for inspection by a member at any reasonable time. 23i. Proceedings of committee meetings shall be available to any Club member. The Associations Incorporation Act 2009 Section 25 - Provisions of model constitution apply if adopted or if matter not addressed - paragraph (2) states "If an association’s constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to be part of the association’s constitution." As our constitution DOES ADDRESS the "Inspection of books etc", the regulations in the model constitution do not apply to our association. In addition, the SBW committee is not allowed to pass resolutions which contravene the SBW Constitution - otherwise the committee could do whatever it liked and completely ignore the rules of the constitution (as it has been doing for the past two or three years anyway)! Standing Resolution #27 therefore conflicts with our constitution, and with the Associations Incorporation Act 2009. The resolution should never have been passed by the SBW committee, and should be removed from the list of Standing Resolutions at the next committee meeting on April 15th or soon after via the committee's "email approval process". If it is not removed, this will create a dispute between the club and me. Shortly before I withdrew the 18 or 19 complaints about committee members violating the constitution, I realised that my being in dispute with the club is a much more effective way for problems to be resolved than the alternative method of making complaints against individuals on the committee. Disputes are dealt with under Rule 12 of our constitution which states - "12. Resolution of disputes a. A dispute between a member and another member (in their capacity as members) of the Club, or a dispute between a member or members and the Club, are to be referred to the committee and then to a community justice centre for mediation under the Community Justice Centres Act 1983. b. If a dispute is not resolved by mediation within 3 months of the referral to a community justice centre, the dispute is to be referred to arbitration. I suggest that it would probably be best for the club if mediation and arbitration could be avoided by removing the cause of the dispute - Standing Resolution #27 - and making the SECRET minutes of any and all SECRET meetings freely available to club members as specified in our constitution. In addition, Standing Resolution #27 was a total waste of the committee's time. If the SBW Constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to be part of the association’s constitution. There is no need to pass a resolution to that effect. And further to that, even if the Model Constitution’s* Sub-rule 43 (4) applies to our club (which it doesn't), if the rule was changed by the Department of Fair Trading in the future, Standing Resolution #27 would no longer apply and a further waste of the committee's time would be needed to change it or remove it. To me, it is obvious that Standing Resolution #27 contravenes the SBW Constitution, and I believe it should be obvious to all. I find it difficult to believe that anyone with even a modicum of understanding of the SBW Constitution, the Model Constitution, and the Associations Incorporation Act, would have created and proposed this resolution to the committee, and it beggars belief that all 11 of the committee members present at the meeting on May 14th, 2024 could have unanimously agreed to pass it. It makes me suspect that the committee just believed that the proposer of the resolution had fully researched and understood the rules and that the committee had therefore simply "rubber stamped" the proposal without doing any due diligence themselves. The alternative would be to believe that the committee passed the resolution knowing full well that it violated the constitution. Regards, Brett Davis |
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