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A 'NO CASE' FOR PROPOSED 2006 CHANGES TO THE AUSTRALIAN CONSERVATION FOUNDATION GOVERNANCE ARRANGEMENTS

The following information was taken from material published on the Port Phillip Conservation Council Inc. website, setting out an argument for the 'No Case' for the 2006 Proposed Amendments to the ACF Constitution.

 

Why ACF members should vote NO to Motions 1, 2, 4 & 10 to alter the Australian Conservation Foundation's Constitution

Please click on the underlined blue hyperlinks for more information.

 

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Vote NO to MOTION 1 ‘Proxy Voting at General Meetings’

ACF’s Constitution provides for postal ballots, and not proxy voting. ACT law now unfortunately allows 5 proxies per member. That can, and should, be overridden by a new Rule to prohibit proxies and confirm postal ballots.

 

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Vote NO to MOTION 2 ‘Governance Arrangements’

Transfer of Governing Authority - including the Policy-making Power - from the Council (directly elected by ACF Members) to a Board (to be appointed by the Council)

 

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Vote NO to MOTION 4 ‘Regulatory Compliance’

The existing rule requiring a postal ballot before any alteration of the Constitution is being unjustifiably ignored and bypassed, with the intention to remove it.

 

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Vote NO to MOTION 10 ‘Confirmation of Constitution’

This catch-all motion would remove the directly-elected Council’s present Governing Authority, and replace the requirement for secret postal ballots of ACF members for Constitutional alterations with a loose non-secret proxy vote.

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Is the ACF Constitution valid or not?
If it is valid, so is its requirement for a postal ballot before Constitution alteration.

If it is not valid, on what basis are the proposed changes being made?

 

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Main issues in these attempts to alter the ACF Constitution

Contact details for the ACF councillors opposing the 4 motions


VOTE NO TO MOTION 1
 Postal Ballot versus Proxy Voting

Many ACF members, who have participated in ACF's postal ballots, but have never been presented with a proxy form from ACF before, might not at first sight recognize the important differences between the form they receive that is labelled "Your vote" and a direct vote cast at a postal ballot in the manner prescribed for and customary in ACF postal ballots for the last 30 years. Australian parliamentary and municipal polls have long had a postal voting option, but the additional option of proxy voting available at such polls in the United Kingdom (this link is quite revealing about UK voters' preferences between postal voting and proxy voting, as they, unlike ACF members, are allowed to choose which form they want), and Canada, has fortunately never happened in Australia. The differences are, however, quite significant and ingenious, for the specific rules that ACF has concocted for these 2006 Special General Meetings include:

  • NO SECRET BALLOT - the proxy voting arrangements that ACF Council has unilaterally created are, unlike the postal ballots mandated by the ACF Constitution, not SECRET ballots, but are votes where the name of the person requesting that the vote be made on his or her behalf, and the manner in which the vote is asked to be cast are, as an inherent part of the process, disclosed to the nominated proxy holder, as the signed Appointment of Proxy instrument, with the ACF member's name, address and membership number, is printed on the reverse side of the page headed "YOUR VOTE",
  • LACK OF CLARITY ABOUT OBLIGATION OF PROXY HOLDER - the proxy form includes a statement signed by the proxy donor that "My proxy is authorized to vote in favour of or against the motions to be put at those meetings, as indicated on the reverse of this form.", but nowhere is there a statement that states that the proxy donor's authorization must be acted on, as the proxy holder is merely authorized, and does not appear to be required to cast the vote as indicated, or even cast a vote at all,
  • FINE PRINT WOULD ALLOW A PROXY HOLDER TO DELEGATE THE PROXY POWER TO AN UNSPECIFIED PERSON - a proxy form whose quite small print (seven key lines of 8.5 point print despite much of the almost A4-sized form being either blank, or occupied by an irrelevant and distracting silhouette of parents swinging a small child) reveals that for the critical first General meeting on 18th August 2006, and for the second General Meeting on 1st September 2006, if needed then owing to the special resolution at the first meeting perhaps not being carried, it doubles as a form provisionally appointing the person intended to be the proxy holder as the proxy donor's agent for the appointment, as the actual proxy, of another person that is probably not likely to be known to the donor (that unusual provision would partly overcome the hindrance, from the proponents' view, of the statutory limitation of each proxy holder to a maximum of five completed proxy forms), and
  • ACTUAL WORD CHANGES IN THE CONSTITUTION REMAIN OBSCURE - unlike all postal ballots on its Constitution that ACF has ever conducted, this General Meeting and proxy arrangement fails to give details of the actual words to be deleted from the Constitution or the words proposed to be inserted in the Constitution, but instead requires those seeking such basic essentials of the motions, if they have access to a computer with a CD-ROM drive, to use it to access those essential words, where they will find that they are not clearly presented, or if they have no CD-ROM drive to email ACF to obtain a hard copy, but if they have no such access they must telephone ACF to secure a paper copy, with a justification being given that over one million pages of paper (over 500,000 sheets) is thereby saved.

 

VOTE NO TO MOTION 1
Proposed Bypassing of Existing Referendum Requirements

 Port Phillip Conservation Council Inc, a longstanding Member Body of the Australian Conservation Foundation supports the stand against the above four motions taken by ACF councillors, Geoff Mosley, David Risstrom and Carol Williams. Those ACF councillors support the Rule in the present ACF Constitution that, as a result of past referendums of members, requires that the Constitution must not be altered without approval by members at a referendum. Members approved that. Unfortunately, since ACF was founded in the 1960s the ACT law that it is incorporated under has changed so that it now states that alterations to the Constitution only take effect if passed at a General Meeting of members.

The present ACF Governance Committee and ACF President have seized on that fact, which nobody doubts or challenges, to now claim that there is no need to include, as a necessary preliminary step, the submission of proposed alterations to ACF members for approval before finally having them made legally binding by the prescribed General Meeting method. They have persuaded the ACF Council to agree to their proposal that major alterations should be made to the ACF Constitution by ignoring and bypassing the existing written, agreed Constitution. The way forward is to reject Motion 1, and make it clear to ACF that it should hold a proper postal ballot, as already prescribed by membership vote, and only proceed to implement the proposed alteration to the Constitution if it is approved at such a ballot by the special majority of 60% prescribed in the existing Constitution.


VOTE NO TO MOTION 2
Transfer of Governing Authority from Council (Directly Elected by ACF Members) to a Board (To be appointed by the Council)

The proposed alterations include remodelling the Executive Committee, which is at present constitutionally subservient to the Council, to become the Board, which would not be directly elected by the ACF members, but would be elected by the Council, and would become the new governing body of ACF, instead of the Council, which would still be elected directly by the members of ACF, but would essentially have only an advisory and consultative role. The YES case claims that this restructuring is necessary because the 35-member Council is too large, and cannot meet often enough to govern the Foundation, but that is an unsound argument as the existing Constitution allows, and always has allowed, the Council to delegate matters, as it always has, and obviously must. The proposed removal of the Council's ultimate power means that it would no longer be able to withdraw a delegated power, as at present, if it considered that the matter involved was so crucial that it demanded a vote by the directly-elected representatives of the ACF members. 


VOTE NO TO MOTION 4
Proposed Removal of the Present Requirement for a Postal Ballot on proposed Alterations to the ACF Constitution

This motion is presented as a proposal to alter the ACF Constitution to make its provision for alteration read much the same as the provisions in the ACT Associations Incorporation Act 1991, where it is stated that it is necessary, for an alteration to the Constitution of an association incorporated under that Act, which ACF is, to become effective, for the proposed alteration to be the subject of a Special Resolution carried at a General Meeting. In reality the real motive for the motion is the undemocratic intention to delete the present provision for a postal ballot, which is being improperly ignored in the current process.

The non-inclusion in the ACF Constitution, as at present, of that provision of the Act in no way avoids the provision, and there is no requirement in the Act for a specific statement of that provision to be included in the rules of an association, as the provision has undoubted force simply by being part of the law of the land. If that were not the case, it would presumably not be possible to make the changes proposed in the forthcoming ACF Special General Meetings.

If the provision is to be included, it would be much better to state that, in addition to the postal ballot requirement that ACF members have established, the other procedures for altering the Constitution, as prescribed in the law from time to time must be observed, as that would avoid the need for alteration of the ACF Constitution in the future if changes in the law provided for some way of altering the Constitution other than a Special Resolution at a General Meeting.

VOTE NO TO MOTION 10
 This motion is intended to remove doubts about the continued existence of ACF's Postal Ballot provision so that it is unequivocally deleted from the ACF Constitution, and to confirm motions that have been passed in defiance of that provision. 

The Australian Conservation Foundation has held democratic participation of its members to be an important part of its conservation efforts in Australia and beyond. While many changes to our constitution may be needed and are worth supporting, adoption of the amended constitution will formalise the removal of the Postal Ballot process as a constitutionally-required democratic first step to determine whether a proposal should proceed to the final legal step of ratification by a General Meeting, with a proxy voting system, and allow for the Foundation’s governance by a Board hosting individuals not directly elected by its membership.

Legislative changes in the Australian Capital Territory, where the ACF is registered, have been taken to mean, despite what the ACF Constitution explicitly sets out, that changes can only be made by members voting at a General Meeting, rather than the traditional Postal Ballot the Foundation has used to date. Some of us believe that replacing Postal Ballots with proxy voting carries a risk that members will feel less involved, counter-productively allowing the Foundation and its work to suffer.

Furthermore, replacing the Executive with a Board, and allowing the Council to nominate non-elected members to the Board, has the potential to offer power to those unelected in a way not intended by the members. Although only ACF members would serve as Board members, the potential for members to challenge the mandate of unelected Board members is ripe for unwelcome conflict.

We believe that if these important democratic traditions are to be abandoned, the rationale and mechanisms for their replacement should be set out for members to understand. The members need to know, if they are to vote for a change, how their grass roots participation will continue to be guaranteed. The continued good work of the ACF should not be dependent on good people of goodwill guiding it to maintain its course.

The constitution of an organisation capable of continuing the good work ACF has done to date should only be changed if it is both essential, and a demonstrable improvement. After considering whether these criteria require us to change our constitution in the way proposed, we believe the answer is NO.


Detailed Issues Statement by ACF councillors whose votes were cast AGAINST putting to a General Meeting
the following proposed ACF constitutional changes in Special Resolutions 1, 2, 4 and  10

MAIN ISSUE 1 – NEED TO RETAIN MEMBERSHIP POSTAL BALLOTS AS PREREQUISITE TO STATUTORY SPECIAL RESOLUTIONS TO CHANGE ACF CONSTITUTION

ACF Members voted for Postal Ballot model: ACF remains an influential Australian body because its members have deliberately created it so all members, wherever they live on Australia’s vast territory, have effective involvement in its structure, by Postal Ballot. Members voted by Postal Ballot to include in ACF’s Constitution the requirement that it cannot be changed without a 60% majority vote at a Postal Ballot.

General Meetings are no substitute for Postal Ballots: ACF’s Constitution, approved by Postal Ballot, gives no right to proxy voting at General Meetings, which are inherently unrepresentative of the national membership, and proxy voting is far too open to abuse. Now, however, ACT law allows up to five proxy votes per member present at a General Meeting, unless the organization’s rules explicitly prevent that.

Motion seeks Unlimited Proxy Voting: Members voting at ACF referendums clearly prefer Postal Ballots, but the motion for a Special Resolution 1 would now circumvent that expressed wish by:

  • altering ACF’s Constitution without the Postal Ballot mechanism that members have required,
  • exploiting the limited proxy voting now allowed, and then
  • introducing unlimited proxy voting.

Unlimited proxies become power struggles between self-interested proxy gatherers, wielding huge block votes, like companies and unions. Contrast that with ACF’s Postal Ballot model, where every voter is as involved as every other voter. Voters are only able to vote themselves, and cannot delegate their votes to proxy harvesters.

Rejigging ACF in August to Triumph in September: Those planning to dismantle ACF’s Postal Ballot system might be afraid that the default provisions of ACT law limiting proxies could limit generation of enough proxies for the 75% majority vote for the sweeping and complex motions in September. The motion for a Special Resolution 1 is being rushed for an August General Meeting, before the remaining nine motions for  September’s General Meeting, to reverse ACF’s long practice of keeping its Australia-wide membership in control.

Proposed Arbitrary Restriction on Length of Statements: The rule in the existing ACF Constitution, which members have endorsed by Postal Ballot, states that written statements circulated to all members in regard to proposed constitutional alterations should not exceed a reasonable length. That is binding on both proponents and opponents of the change, and has led to precedent, judgement, and negotiation over the length allowing statements to vary according to circumstances and issues. A rigid limit, particularly one as restrictive as the 300 words limit applying to the summary statement, encourages the packaging of motions into one complex, intertwined “take-it or leave-it” package, which cannot be effectively opposed in just 300 words.

No ACT Law against requiring a Postal Ballot before General Meetings to finalize change:

Members required that Postal Ballot protection for changes to the ACF Constitution, but the law in the ACT, where ACF is incorporated, now imposes a further requirement that changes to rules must be made by a “special resolution” at a General Meeting, which requires a 75% majority vote for success. All ACF councillors recognize that the ACT law must be complied with, whether its relevant provisions are restated in the ACF Constitution or not. What is being argued - strenuously - is that there is absolutely no requirement in that ACT law for the existing provision for a Postal Ballot of members to be swept away, and not remain as a proper preliminary step in deciding whether or not each proposed Constitution alteration should proceed to the legal necessity of a General Meeting. Therefore the so-called “Regulatory Compliance” motion is a smokescreen for an unwillingness to maintain the present member-approved democratic safety check on proposed changes to the very basis of the Foundation - its Constitution.

Different Motion Needed: To ensure maintenance of that reasonable, just, and democratic step of putting all members on the same footing when it comes to vetting constitutional proposals ACF should, instead of the motion for a Special Resolution 1, be submitting a motion for a Special Resolution to ensure that the Constitution continues to include a Postal Ballot as a first step before the statutory General Meeting, and not be seizing on this windfall opportunity to unnecessarily obliterate that democratic protection.

That better motion, retaining Postal Ballots, at least as a prerequisite for constitutional change, is needed.

MAIN ISSUE 2 – NEED TO REJECT PROPOSALS TO REDUCE MEMBERSHIP CONTROL

Proposed Restriction on Re-election of Proven Councillors: The motion for a Special Resolution 2 at the Special General Meeting to be held in Melbourne in September 2006 asks members at a once-off General Meeting to remove the present right of voters at future ACF Council elections to re-elect proven councillors that those voters prefer above other contenders to represent them on the Council. Such a restrictive provision would be a serious attack on the rights and powers of members as voters. Rather than have a single debate at a Special General Meeting close off indefinitely, by a blanket ban, the opportunity for experienced councillors that continue to be well-supported electorally to be assessed by voters at each successive Council election, and to maximize choice for voters, it is surely far better to let all those voting decide the issue in each separate election year, and in each separate electorate.

ACF does not have a winner-take-all electoral system where all that happens is that either all councillors elected are from the “old guard”, or all councillors elected are newcomers. Instead it has long had a proportional representation system, which gives a mixture of new councillors and experienced councillors in accordance with the mixture of voters’ attitudes on that aspect of candidature, taken into account with other aspects judged to be significant by the voters.

The proposal is a modified version of the term limit restriction, primarily a US concept, which has created their unfortunate “lame duck” syndrome, but Australia’s democratic electoral practice is not hampered that way. Good representatives and leaders in community affairs are not that abundant that we can afford to discard them arbitrarily. Such profligate discarding is in direct opposition to letting voters have the representative they indicate they want. This artificial constraint on democracy should be rejected.

Proposed Reduction of Council Meetings to 2 per Year: The motion for a Special Resolution 2 asks members to further weaken ACF members’ influence by reducing the number of Council meetings that can be held annually. This reduction in the involvement of members’ directly-elected representatives in ACF’s operation is utterly consistent with the general purpose and motivation of the undemocratic changes that are being attempted by the unnecessary disregard of ACF’s established Postal Ballot system for gaining membership approval of constitutional changes.

The route for change being attempted might be the only way in which such anti-democratic measures could be instituted, as the fair and member-mandated approach of a Postal Ballot would almost certainly see such the membership reject such moves. Despite pretences that the Council that members would still elect has a significant purpose, other than being a US-style Electoral College to elect the members of the all-powerful “Board”, it would seem that the proposed reduction to two Council meetings per year reveals the minor “Mickey Mouse” role being envisaged for ACF Council.

MAIN ISSUE 3 – NEED TO ENSURE THAT THE GOVERNING BODY OF ACF REMAINS DIRECTLY ELECTED BY THE MEMBERS OF THE FOUNDATION

The proposed constitutional changes in the motions for Special Resolutions 1, 2, 4 and 10 represent the biggest assault on ACF’s democratic system in its history. If you believe in democracy you will decisively reject these proposals by voting ‘NO’.

ACF’s present system is based on the fundamental principle that in a democratic organization the governing body, which determines policy and has the final say on crucial matters, should be directly elected by its members. Members can submit motions to Council at meetings or through their Councillor representatives – then Council decides, and its decisions now bind the officers, staff, and all other committees. This approach, which has served us well for over thirty years, is even more relevant to the tough challenges of the future, which will not be met without direct community involvement.

There are always some people around who will try to grab power. A large majority at a Postal Ballot of members in 1991 rejected an earlier move to entrench more powers with the Executive Committee.

The Foundation’s current system of government is the one most suited for the continental-sized challenges confronting it. Arguments that change is necessary because ACF is bigger are specious. ACF has more money now, but the secretariat is only marginally bigger, and is certainly no more active or professional. The democratic solution lies in electing Councillors prepared to engage the community, and not in making ACF more authoritarian, centralised, elitist and bureaucratic.

Closely examine the proposals and the methods of bringing them about, and you will see many such tendencies including:

  • reducing the number of Council meetings,
  • limiting the number of terms a Councillor can serve,
  • unnecessarily abandoning the Postal Ballot method as a prerequisite for constitutional change, and
  • the arbitrary restriction of the summary statement on extensive complex changes to 300 words.

Rule 6 of the ACF Constitution reads, “Governing Authority of the Foundation. The governing authority of the Foundation shall be the Council elected pursuant to these rules.” ACF members have long understood that ACF’s policies and performance are likely to be more consistent with the views of members if such a directly-elected Council holds that authority. They do not want it weakened by a pretence that inevitably localized and brief General Meetings should erode either the Council’s powers, or the ultimate power over the ACF Constitution of all ACF members at Australia-wide Postal Ballots, which has been the key means of shaping the ACF as we now know it, and keeping it free from undue manipulation.

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Extract from Constitution of Australian Conservation Foundation as at July 2006

 PART IX CONSTITUTIONAL AMENDMENTS

 53. Procedures for Constitutional Amendment

53.1 A motion to amend the Constitution may be submitted at any time by the Council or the Executive or by request in writing addressed to the Secretary by at least one hundred members.

53.2 In the case of a motion submitted by the Council or the Executive pursuant to Rule 53.1, the majority of those members of the Council or the Executive that voted against submitting the motion, and the Council or Executive, may require the Secretary to distribute with each ballot paper, a statement prepared by the Council, the Executive or the majority of the Council or Executive members who voted against submitting the motion, as the case may be. 

53.3 In the case of a motion submitted under Rule 53.1 by at least 100 members, the Council must promptly consider the motion and any statements prepared for distribution with it, before the relevant ballot paper is posted, and must resolve to approve, disapprove or abstain from comments on the motion and statements. The Secretary must distribute with each ballot paper a statement prepared by the members submitting the motion and statements prepared by:

(a) the Council; and, 

(b) a majority of those councillors, if any, who voted to disapprove of it if the Council fails to disapprove of the motion. 

53.4 Any statements prepared pursuant to Rule 53 must be of a reasonable length. 

53.5 The Secretary must post notice of a motion pursuant to Rule 53.1 at least 21 days before the date fixed by the Council for the last day of posting of the postal ballot. The Council must fix the last day for the posting of the ballot papers and the postal ballot must close at 4pm on the 28th day after the day so fixed. 

54. Amendment of the Constitution

This Constitution can only be amended by a resolution carried by a three-fifths majority of members voting in a postal ballot. If the Council considers that two or more motions submitted should be regarded as alternatives to each other, the motions must, together with the alternative that there be no amendment of the rule or rules in question, be put as options to be voted upon using the preferential voting system prescribed in this Constitution for the filling of single vacancies, except that a three-fifths majority rather than an absolute majority is required. If one of the alternative motions receives the requisite majority of votes by first preferences or after distribution of preferences, it must be regarded as having been carried and as being a resolution by which the Constitution is amended.


THE PRESENT ACF CONSTITUTION IS EITHER VALID OR IT IS NOT VALID.

Fundamental Flaw in the ACF Manoeuvres that are now Underway

ACF Council has embarked on an inherently flawed attempt to alter the ACF Constitution solely by a special resolution of a General Meeting, despite the clear statement in the ACF Constitution, which ACF members have approved by postal ballot, that such alterations must be approved at a postal ballot of ACF members before they can take effect.

The ACF Constitution is either valid, or it is not valid. If the ACF Constitution is valid, its requirement that it cannot be altered without approval of the alteration at a postal ballot of members is therefore valid and must be observed as prescribed before any alteration can properly be made by the Foundation. If the Constitution is not valid, how can the ACF Council elected in accordance with its provisions be valid, or make valid decisions such as instigating the purported alterations to the Constitution,? On what basis can a General Meeting exercise its supposed powers, as the existence and operation of that forum surely depends on the terms of the Constitution?

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The above extra details on the case against proposed 2006 alterations to the ACF Constitution were authorized by ACF Councillors, Geoff Mosley, David Risstrom and Carol Williams. Port Phillip Conservation Council Inc. also opposes the motions.
 

Victorian ACF Councillor, Dr Geoff Mosley, can be contacted at 03 9718 2998 or by email

 

 
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