[Centres] 2020 AGM Zoom Meeting and Notices of Motion
Joseph Orland
joseph.orland at telstra.com
Thu Jul 9 01:34:32 AEST 2020
The Secretary,
Centre Committee
RDA (NSW) Box Hill (Tall Timbers) Centre.
The Board would like to thank your Centre's Committee for the interest that
it has shown in relation to the forthcoming 2020 AGM of RDA (NSW). The
Board would also like to address the statements made in your email dated 6
July 2020 in the history to this email (see below).
Your email raises a number of issues relating to the operation of RDA (NSW),
and in particular, matters relating to the 2020 AGM of RDA (NSW). The
responses to the questions raised are contained below.
1 Scrutineers
The names of the scrutineers will be announced when they are confirmed.
2 Auditor
As to the auditor, the Board would like to thank your Centre's Committee for
their diligence in insisting that all provisions of the Corporations Act as
referred to in your Centre's email in relation to the auditor are complied
with in full.
The Board is pleased to assure your Centre, and all other Centres to whom
you sent your email, that the Board is fully aware of the legal requirements
on this issue and that the Board has complied with all of those
requirements.
As is usual, the Board has invited the auditor to the 2020 AGM of RDA (NSW).
This is done annually as a matter of courtesy to the auditor. However, the
Board needs to point out that your Centre's Committee appears to have
misunderstood the requirements of the Corporations Act in relation to this
issue.
As noted above, the auditor is invited to attend the RDA (NSW) AGM as a
courtesy to the auditor. Contrary to what is asserted in your Centre's
email, there is no requirement under the Corporations Act for this
invitation to be issued.
In your Centre's email it is stated: "The auditor of the company is
required to attend the AGM. We draw your attention to the Corporations Act
2001 - Sect 249V and Section 250T"
With respect, what you assert is not what either Section 249V or Section
250T state.
Section 249V states:
249V Auditor's right to be heard at general meetings
(1) A company's auditor is entitled to attend any general
meeting of the company.
Note: Section 250RA imposes on the auditor of a listed public
company an obligation to attend or be represented at the AGM.
(2) The auditor is entitled to be heard at the meeting on any
part of the business of the meeting that concerns the auditor in their
capacity as auditor.
(3) The auditor is entitled to be heard even if:
(a) the auditor retires at the meeting; or
(b) the meeting passes a resolution to remove the
auditor from office.
(4) The auditor may authorise a person in writing as their
representative for the purpose of attending and speaking at any general
meeting.
It is noted that the requirement of the Corporations Act is that the auditor
"is entitled to attend" and is "entitled to be heard" the AGM. This differs
greatly from your Centre's statement that the auditor "is required to
attend" the RDA (NSW) AGM. The Board suggests that there is a marked
difference between being "entitled to attend" and "required to attend".
Section 250T as also referred to in your email below does not say that the
auditor is required to attend the AGM of RDA (NSW). What the section states
is:
250T Questions by members of auditors at AGM
(1) If the company's auditor or their representative is at the
meeting, the chair of an AGM must:
(a) allow a reasonable opportunity for the members as
a whole at the meeting to ask the auditor or the auditor's representative
questions relevant to:
(i) the conduct of the audit; and
(ii) the preparation and content of the
auditor's report; and
(iii) the accounting policies adopted by the
company in relation to the preparation of the financial statements; and
(iv) the independence of the auditor in
relation to the conduct of the audit; and
(b) allow a reasonable opportunity for the auditor or
their representative to answer written questions submitted to the auditor
under section 250PA.
(2) An offence based on subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) If :
(a) the company's auditor or their representative is
at the meeting; and
(b) the auditor has prepared a written answer to a
written question submitted to the auditor under section 250PA;
the Chair of the AGM may permit the auditor or their representative to table
the written answer to the written question.
(4) The listed company must make the written answer tabled
under subsection (3) reasonably available to members as soon as practicable
after the AGM.
The section merely refers to what happens "if" the auditor is at the AGM,
not that the auditor "must" be at the AGM.
What your Centre appears to be referring to is Section 250RA:
250RA Auditor required to attend listed company's AGM
Contravention by individual auditor
(1) If a listed company's auditor for a financial year is an
individual auditor, the auditor contravenes this subsection if:
(a) the auditor does not attend the company's AGM at
which the audit report for that financial year is considered; and
(b) the auditor does not arrange to be represented, at
that AGM, by a person who:
(i) is a suitably qualified member of the
audit team that conducted the audit; and
(ii) is in a position to answer questions
about the audit.
(2) An offence based on subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Contravention by lead auditor
(3) A person contravenes this subsection if:
(a) a listed company's auditor for a financial year
is an audit firm or an audit company; and
(b) the person is the lead auditor for the audit; and
(c) the person is not represented, at the AGM at
which the audit report for that financial year is considered, by a person
who:
(i) is a suitably qualified member of the
audit team that conducted the audit; and
(ii) is in a position to answer questions
about the audit.
(4) An offence based on subsection (3) is an offence of strict
liability.
This provision is also referred to in Section 249V as quoted above where it
is stated in a Note to that Section: "Section 250RA imposes on the auditor
of a listed public company an obligation to attend or be represented at the
AGM."
The Board would assume that the Centre's Committee is aware that RDA (NSW)
not only is not a "listed public company", but that it simply cannot be a
"listed public company".
RDA (NSW) is a company limited by guarantee, it does not have shares and
therefore cannot be listed on the stock exchange. Therefore, the
requirement for a company's auditor to attend a company's AGM applies only
if the company is a listed company.
Therefore, contrary to the Centre Committee's statement, there is no
compulsion for the auditor to attend the AGM of RDA (NSW) and, therefore, no
requirement for RDA (NSW) to invite the auditor, even though the auditor is,
as a matter of course, and out of courtesy, invited to the RDA (NSW) AGM by
the Association's Board.
3 Voting Procedures
As for the issue of the procedures for voting at the AGM by teleconference,
the Board is pleased to inform, and assure, your Centre, that the Board is
well aware of the requirements of the provisions of the Corporations Act
relating to procedures at an AGM, including voting on any motions.
As has already been advised by the Board, procedures for this will be
announced closer to the date of the AGM. To be better able to do this, the
Board is conducting "trials" of how to achieve the best results for Members
out of our Association's first organisation-wide meeting by teleconference,
with the main focus being on the issue of the taking of votes on motions.
However, the Board is concerned at the implied allegations, as contained in
your Centre's email, of breaches of the Corporations Act by the Board in
relation to the Notices of Motion which have been put by your Centre.
It is noted that your email states "the Board has indicated that discussion
and voting of Motions raised by Members will be contingent on legal advice
being received in time to table at the AGM. This is a breach of the
Corporations Act. The Motions by Members were raised in accordance with the
Corporations Act and the RDA NSW Constitution."
With respect, it appears that your Centre has misunderstood what was
intended by what the Board stated and the Board strongly rejects the
statement that the Board has breached the provisions of the Corporations
Act.
It is not disputed that the Motions raised by your Centre were raised in
accordance with both the Corporations Act and the RDA (NSW) Constitution.
However, it is wrong to infer that the Board stated that those Motions will
not be dealt with.
As the Notices of Motion which have been put by your Centre are reasonable
and sensible, the Board fully intends to do all that is required under the
Corporations Act in relation to your Centre's Motions. However, that does
not mean that the Motions must be finalised at the AGM if there are other
matters that need to be attended to in relation those Motions.
The Board has previously stated that it has sought legal advice on the issue
raised in your Centre's Motions to ensure that the best result possible is
achieved for RDA (NSW) and all of its Centres.
Contrary to what is inferred in your email, what the Board proposes is that
the Motions put by your Centre be presented to the AGM. For this purpose,
those Motions have been circulated to all Centres. This fully complies with
the requirements of the Corporations Act. However, if the legal advice is
not available in sufficient time to allow for a complete understanding of
all of the ramifications of implementing those Motions, the Board has a
responsibility to ensure that the best result possible is achieved for RDA
(NSW) and all of it Centres.
As a result, if the legal advice is not available in sufficient time before
the AGM to allow a decision to be made with the benefit of that advice, the
Board will be putting Motions to the effect that the vote on the Centre's
Motions be adjourned until the legal advice is received.
The reason for this is that it is the Board's view that all information
should be available to all Centres before all Centres are required to take a
vote on your Centre's motions. It is also the Board's view, and the Board's
responsibility under the Corporations Act, that on matters such as those put
by your Centre, it is important that independent external legal advice be
sought.
The obtaining of that advice will allow Member Centres to be able to make an
informed decision on the matters raised in your Centre's Motions. This will
help ensure that Member Centres will have knowledge of all of the legal,
financial and practical implications that could flow from the Motions being
put by your Centre.
If that Motion by the Board is approved by the Centres, the matter can be
put to a Special Meeting to be called for the purposes of considering, and
voting on, your Centre's Motions. This is in full compliance of the
provisions and requirements of the Corporations Act.
The Board suggests that such a deferral, if needed, would be in the best
interests of RDA (NSW) and all of its Centres as the decision on your
Centre's Motions will have on-going, and potentially wide-ranging, effect on
the Association and all of its Centres. It is a great responsibility on
Member Centres and RDA (NSW)'s future directions. It is therefore important
that the decisions on your Centre's Motions should be based with the
benefits of that independent legal advice.
Regards,
Joseph Orland
Honorary Director, Finance Officer & Company Secretary
Riding for the Disabled Association (NSW)
Quad 1, Level 2, 8 Parkview Drive, Sydney Olympic Park, NSW
(PO Box 710 Sydney Markets NSW 2129)
Ph: (02) 8736 1256 Mob: 0407 004 019
Email: <mailto:stateoffice at rdansw.org.au> joseph.orland at rdansw.org.au
Web: <http://www.rdansw.org.au/> www.rdansw.org.au
"Riding Develops Abilities"
Donations of $2.00 or more are tax deductible
From: RDA NSW Tall Timbers Centre <talltimbers at rdansw.org.au>
Sent: Monday, 6 July 2020 10:19 AM
To: 'Joseph Orland' <joseph.orland at telstra.com>; board at rdansw.org.au;
stateoffice at rdansw.org.au
Cc: Nepean RDA <nepean at rdansw.org.au>; RDA Blue Mountains
<bluemountains at rdansw.org.au>; RDA Central Coast
<centralcoast at rdansw.org.au>; RDA Illawarra Centre
<illawarra at rdansw.org.au>; RDA Ryde <ryde at rdansw.org.au>; RDANSW Albury
Wodonga <alburywodonga at rdansw.org.au>; RDANSW Armidale and NE
<armidaleandnewengland at rdansw.org.au>; RDANSW Ballina and District
<ballinaanddistrict at rdansw.org.au>; RDANSW Bathurst and District
<bathurst at rdansw.org.au>; RDANSW Coffs Harbour and District
<coffsharbour at rdansw.org.au>; RDANSW Coonabarabran
<coonabarabran at rdansw.org.au>; RDANSW Cootamundra
<cootamundra at rdansw.org.au>; RDANSW Cowra <cowra at rdansw.org.au>; RDANSW
Dubbo <dubbo at rdansw.org.au>; RDANSW Eurobodalla <Eurobodalla at rdansw.org.au>;
RDANSW Forbes <forbes at rdansw.org.au>; RDANSW Goulburn
<goulburn at rdansw.org.au>; RDANSW Griffith <griffith at rdansw.org.au>; RDANSW
Gunnedah <gunnedah at rdansw.org.au>; RDANSW Kempsey Macleay
<kempsey at rdansw.org.au>; RDANSW Kendall <kendall at rdansw.org.au>; RDANSW
Manning Great Lakes <manning at rdansw.org.au>; RDANSW Moss Vale
<mossvale at rdansw.org.au>; RDANSW Mudgee <mudgee at rdansw.org.au>; RDANSW
Narrabri <narrabri at rdansw.org.au>; RDANSW Orange <orange at rdansw.org.au>;
RDANSW Tamworth and district <tamworth at rdansw.org.au>; RDANSW Tumut
<tumut at rdansw.org.au>; RDANSW Tweed Valley <tweedvalley at rdansw.org.au>;
RDANSW Upper Hunter <upperhunter at rdansw.org.au>; RDANSW Wauchope Port
Macquarie <wauchopeportmacquarie at rdansw.org.au>; RDANSW West Wyalong
<westwyalong at rdansw.org.au>; RDANSW Young <young at rdansw.org.au>;
talltimbers at rdansw.org.au; metropolitan at rdansw.org.au; hunter at rdansw.org.au;
northwest at rdansw.org.au; midnorthcoast at rdansw.org.au;
northcoast at rdansw.org.au; southernhighlands at rdansw.org.au;
riverina at rdansw.org.au; centralwest at rdansw.org.au
Subject: 2020 AGM Zoom Meeting and Notices of Motion
Dear Chairperson,
RDA NSW Tall Timbers writes you as the Chairperson of the Company in
response to the Memorandum from RDA (NSW) with subject heading "2020 AGM -
Zoom Meeting and Notices of Motion" dated 19 June 2020.
To ensure full transparency with regard to this important matter, we are
including all Member Centres in our response.
Firstly, we write to remind the Board of their obligation to ensure the AGM
is facilitated and conducted in strict accordance with the Corporations Act,
ASIC guidelines and ACNC Corporate Governance Standards.
1.Scrutineers
a. Who are the scrutineers referenced in section A 1) of your
memorandum?
b. How were they selected?
2.Attendance of Auditor at the AGM
Please confirm that the auditor has been provided notice of the meeting and
will be attendance.
The auditor of the company is required to attend the AGM. We draw your
attention to the Corporations Act 2001 - Sect 249V and Section 250T.
CORPORATIONS ACT 2001 - SECT 249V - Auditor's right to be heard at general
meetings
Auditor's right to be heard at general meetings
(1) A company's auditor is entitled to attend any general
meeting of the company.
(2) The auditor is entitled to be heard at the meeting on any
part of the business of the meeting that concerns the auditor in their
capacity as auditor.
(3) The auditor is entitled to be heard even if:
(a) the auditor retires at the meeting; or
(b) the meeting passes a resolution to remove the
auditor from office.
Note 1: At an AGM, members may ask the auditor questions (see section
250T).
CORPORATIONS ACT 2001 - SECT 250T - Questions by members of auditors at AGM
(1) If the company's auditor or their representative is at the
meeting, the chair of an AGM must:
(a) allow a reasonable opportunity for the members as
a whole at the meeting to ask the auditor or the auditor's representative
questions relevant to:
(i) the conduct of the audit; and
(ii) the preparation and content of the
auditor's report; and
(iii) the accounting policies adopted by the
company in relation to the preparation of the financial statements; and
(iv) the independence of the auditor in
relation to the conduct of the audit; and
3.Voting Procedures
We remind the Board of their obligations as Directors of a Company to ensure
the AGM is conducted in full compliance with the requirements of the
Corporations Act, and ASIC guidelines
We note that in section B 1) and B 2) of your Memorandum, the Board has
indicated that discussion and voting of Motions raised by Members will be
contingent on legal advice being received in time to table at the AGM. This
is a breach of the Corporations Act. The Motions by Members were raised in
accordance with the Corporations Act and the RDA NSW Constitution.
Failure to comply with these regulations will result in complaints being
raised with ASIC and ACNC (Australian Charities and Not for Profits
Commission).
Voting procedures during the AGM must be via Poll and not by show of hands
in accordance with the Corporations Act.
Corporations (Coronavirus Economic Response) Determination (No. 1) 2020
Part 2-Meetings. Section 5 - Provisions about meetings
<https://www.legislation.gov.au/Details/F2020L00553>
https://www.legislation.gov.au/Details/F2020L00553
(c) a vote taken at the meeting must be taken on a poll, and not on a show
of hands, by using one or more technologies to give each person entitled to
vote the opportunity to participate in the vote in real time and, where
practicable, by recording their vote in advance of the meeting;
(d) a requirement to allow an opportunity for persons attending the meeting
to speak (for example, by asking questions) may be complied with by using
one or more technologies that allow that opportunity;
We look forward to the Board's response within 7 days.
Kind Regards,
RDA Tall Timbers Centre Committee
Riding for the Disabled Assoc NSW Tall Timbers Centre
125 Old Pitt Town Road Box Hill NSW 2765
Phone: 9679 1246 Fax: 9679 0638
ABN 22 977 966 930
<mailto:talltimbers at rdansw.org.au> talltimbers at rdansw.org.au
<http://www.talltimbers.rdansw.org.au/> www.talltimbers.rdansw.org.au
<http://www.facebook.com/RDATallTimbers> www.facebook.com/RDATallTimbers
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