[Lifemember] Motion re provisions of RDA (NSW) Constitution

Sat Jul 6 04:15:10 AEST 2024

Hello everyone.

A question has arisen as to whether Honorary Life Members of RDA (NSW)
["HLMs"] are eligible to vote at RDA (NSW) meetings.  The question arises
following amendments which were made to the former RDA (NSW) Constitution
when the new RDA (NSW) Constitution was introduced.

There is no doubt that, under the former (pre-2018) Constitution, HLMs were
not eligible to vote, but before proceeding to that point, it is worth
noting the current provisions of Clause 10.2(d).

Clause 10.2(d) in the current RDA (NSW) Constitution states:

10.2. Categories and requirements for membership 

The Company's membership is classified into the following categories:

....

(d) Honorary Life Member 

Honorary Life Membership of the Company is bestowed upon individuals who
have contributed significantly to the Company over many years. Such Honorary
Life Membership is awarded by the Board of Directors following a resolution
of at least two thirds of the Members present and eligible to vote,
including by proxy, at an AGM. This category of membership entitles the
Member to receive a notice of, attend and receive the Minutes of but not to
debate and /or vote at General Meetings. An Honorary Life Member is not
obliged to pay any membership fees to the Company; and enjoys all the
privileges and benefits and is subject to the same obligations as a Voting
Member.

This provision  needs to be considered in the context of the Constitution
and Rules that preceded the current version (see copies attached).  The
Constitution and the Rules needed to be read together in order to determine
what was required.

The Rules contained the following provision:

3.2 Categories and requirements for membership 

3.2.1   There are five categories of membership of Riding for the Disabled
Association (NSW): 

..

(c)    Honorary Life Membership. Honorary Life Membership of RDA (NSW) is
bestowed upon individuals who have contributed significantly to the
Association - usually over many years. Such Honorary Life Membership is
awarded by the State Council following a Resolution of at least two thirds
of the members thereof. This category of membership entitles the member to
receive minutes of general meetings of the Association; however it does not
entitle the Hon. Life Member to vote. 

The provisions which related to voting in relation to RDA matters is
contained in the following provision in the former Constitution:

15.0 VOTING 

15.1 Voting at Annual General and other meetings of the Association, and at
meetings of the State Councils and Board of Directors, shall be in
accordance with the Rules of the Association. 

15.2 Quorums for meetings of members and for meetings of State Council or
the Board of Directors shall be as determined in the Rules of the
Association. 

15.3 The Board shall elect a chairperson from amongst their numbers
according to the Rules of the Association. 

15.4 Each Accredited Member Centre represented or present at a General
Meeting of the Association shall be entitled to one vote, but in the event
of an equality of votes on any question or Resolution, the person chairing
the meeting will exercise a casting vote. 

15.5 Each Councillor, except the chairperson present at a meeting of a State
Council of the Association shall be entitled to one vote, but in the event
of an equality of votes on any question or Resolution, the person chairing
the meeting will exercise a casting vote. 

15.6 Each Director, except the chairperson present at a meeting of the Board
of Directors of the Association shall be entitled to one vote, but in the
event of an equality of votes on any question or Resolution, the person
chairing the meeting will exercise a casting vote. 

15.7 Each member of a Sub-committee of the Association except the
chairperson present at a meeting of that Sub-committee shall be entitled to
one vote, but in the event of an equality of votes on any question or
Resolution, the person chairing the meeting will exercise a casting vote. 

Clearly, the HLMs were not accorded the ability to vote under the former RDA
Constitution.  As to the voting at the Annual General Meeting, the Rules (as
referred to above in Clause 15 of the former Constitution) stated:

2.1.3   At all meetings, whether Annual or Extraordinary, each Accredited
Member Centre is entitled to nominate one voting delegate. The nomination
must be in writing, signed by the Centre President and lodged with the
Chairperson of the meeting. Non-voting delegates may also attend. 

There is no reference to HLMs having any right to vote at the AGM and the
combined effects of the text was such that they were actually denied the
ability to vote.  This accords with the then provision of Clause 3.2.1(c) -
see above - as contained in the then provision of "3.2 Categories and
requirements for membership."

It is clear that, in the former RDA (NSW) Constitution and Rules, there was
absolutely no ability,  or intention, for HLMs to be able to vote at the RDA
(NSW) AGM and, in fact, specifically prohibited HLMs from voting.

However, when the new RDA (NSW) Constitution was introduced in 2018, there
were a number of changes made, besides combining the "Constitution" and the
"Rules".  

To repeat the current provision of Clause 10.2(d):

10.2. Categories and requirements for membership 

The Company's membership is classified into the following categories:

....

(d) Honorary Life Member 

Honorary Life Membership of the Company is bestowed upon individuals who
have contributed significantly to the Company over many years. Such Honorary
Life Membership is awarded by the Board of Directors following a resolution
of at least two thirds of the Members present and eligible to vote,
including by proxy, at an AGM. This category of membership entitles the
Member to receive a notice of, attend and receive the Minutes of but not to
debate and /or vote at General Meetings. An Honorary Life Member is not
obliged to pay any membership fees to the Company; and enjoys all the
privileges and benefits and is subject to the same obligations as a Voting
Member.

As is relevant for present purposes the main area for discussion is the text
which states, in the current provision of Clause 10.2(d),:

This category of membership entitles the Member to receive a notice of,
attend and receive the Minutes of but not to debate and /or vote at General
Meetings.

This contrasts with the next part of this Clause which was added via the
amendments that were made in the 2018 amendments to the Constitution.  That
Clause states:

An Honorary Life Member is not obliged to pay any membership fees to the
Company; and enjoys all the privileges and benefits and is subject to the
same obligations as a Voting Member.

This second text was approved by the Members for amending the former
provision of the Constitution.  However, it is important to note that there
is a clear and definite inconsistency between these two provisions.  

While the HLMs now, as a result of the amendment made in 2018, have been
given by the addition of the text "same privileges and benefits..as a Voting
Member", the original text was not amended by deleting the now clearly
inconsistent text that did not allow HLMs to "debate and/or vote at General
Meetings" - that is, the text that was being overturned was inadvertently
not removed from the text of the Constitution.  The two provisions are
diametrically opposed to each other.  

A clear, intentional and unambiguous decision was obviously made in 2018 to
amend the Constitution to allow HLMs to vote.  The text "all privileges and
benefits..as a Voting Member" is clearly intended to confer onto the HLMs,
rights that match those of a "Voting Member" - ie, in the present context,
to allow the HLMs the right to vote at meetings of RDA (NSW).

This inconsistency was further reinforced as a result of the introduction,
into the RDA (NSW) Constitution, of the following provisions:

"Honorary Life Member" means a person appointed to Honorary Life Membership
in accordance with Clause 10.2 (d).

and

"Member" means a person or organisation who joins or renews as a member of
the Company in one of the following membership categories of the Company: 

(a) Accredited Centre; 

(b) Associate Organisation; 

(c) Honorary Member; 

(d) Honorary Life Member; 

(e) Provisional Centre; 

(f) Steering Committee; and 

(g) such other categories as are created from time to time under Clause
10.9.

as well as:

"Voting Member" means an Accredited Centre or Honorary Life Member who is
not prohibited from voting by any provision of this Constitution.

Before progressing further, comment needs to be made in relation to the
reference to "Clause 10.9" at point (g) in the definition of "Member".  It
is suggested that the correct reference should be to "Clause 10.8" as Clause
10.9 deals with the issue: "Membership entitlements are not transferable"

The main issue arises out of the provision of Clause 10.2(d) in which the
original text of:

"This category of membership entitles the Member to receive a notice of,
attend and receive the Minutes of but not to debate and /or vote at General
Meetings." 

was being amended to allow HLMs to vote by adding to Clause 10.2(d) the
following text:

"An Honorary Life Member is not obliged to pay any membership fees to the
Company; and enjoys all the privileges and benefits and is subject to the
same obligations as a Voting Member."

The logical intent of the amendment, and each of the other amendments, was
to allow HLMs to vote.  These amendments are clearly inconsistent with the
original provisions in the Constitution that prohibited HLMs from voting.

To now hold that the HLMs are not able to vote at Meetings is to say that
the vote that was made by the Members in 2018 to allow HLMs to vote did not
take place and therefore that particular provision is not part of the RDA
(NSW) Constitution.  This is contrary to what happened as that vote, which
was to introduce the additional text of the amendments, did take place.  The
result of that vote was to allow HLMs to vote.

It is obvious that, at the same time as introducing the amendments to allow
HLMs to vote, it was necessary to remove the provision in the Constitution
that prohibited HLMs from voting.  This is the logical result, as by
introducing the amendments the intention was to allow the HLMs to vote.
However, an editing error was just as clearly made.  This error was that the
text that was being intentionally overturned by the addition of the
amendments which were being introduced in order to allow the HLMs to vote
was not deleted.

The original text being left in the Constitution can best be described as an
editing error, in that the text that was being overturned was inadvertently
left in the document.  The clear and unambiguous decision of the Members was
to allow HLMs to vote.

The way in which that intention of the Members in 2018 can be fulfilled is
to remove the text that was intended to be overturned by the amendments
(that is, to remove "but not to debate and /or vote at").  It is in this way
that the correct intention is unambiguously expressed.  

As a result of the amendments to the Constitution, the text in question
would need to be stated as "This category of membership entitles the Member
to receive a notice of, attend and receive the Minutes of General Meetings"
and add the provisions which allowed HLMs to vote.  That was the clear
intention of the amendments.  

Regards,

Joseph Orland

Honorary Director, Company Secretary, Development Officer.

Riding for the Disabled Association (NSW)

Mob: 0407 004 019; Email:  <mailto:stateoffice at rdansw.org.au>
joseph.orland at rdansw.org.au

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