Agony Uncle: Can my club create a board to govern the board?

Borthwick Chris Jul2019lg

Dear Agony Uncle,

Can a club have a committee and separately have a board of directors to make sure that the committee runs the club – and the AGM – according to the constitution?

A. Stickler, Hobart, Tas

This might be a definitional issue. There’s no legal difference, and no necessary difference in function, between a “board” and a “committee of management”. Both mean much the same thing.

In answering your question, I’m going to use the term “board/committee”. By this I’m referring to one single governing body, and highlighting the fact that the terms can be used synonymously.

There are subcommittees, which are set up by boards/committees for particular purposes. These have whatever powers and duties the superior body gives them.

Then there are advisory committees, consisting of life members, elders, past presidents, or whatever. These have the power they have been given by the board/committee (or by the constitution) to report back with recommendations for them to act on if they wish.

I assume, though, that we’re not talking about advisory committees or subcommittees, and that you’re asking about an ordinary common or garden variety board/committee that is to be overseen by another body. That raises questions.

If you mean “Can an existing organisation do this?” then the answer is probably no. If there’s no provision for it in the constitution, you can’t do it now except by calling a general meeting and amending the constitution or adopting a new one.

If the question is “Can we set up a new organisation with a new constitution that includes this?” then the answer is probably again no, because the various state incorporation acts all include something to this effect:

“Subject to this Act, the persons who have under the rules of an incorporated association power to administer the affairs of the association constitute, for the purposes of this Act, the committee of the association.”

This means that the board/committee is the body that has the power to make decisions for the organisation. To put it another way, whatever body has the ultimate power to make decisions is effectively the board/committee.

If it is subject to being overruled by another body, then it doesn’t have that power: the supervisory committee does.

In that case, the supervisory committee is actually the board/committee, and might as well be given that name, making the old board/committee into a subcommittee with wide-ranging delegations.

What you seem to be asking for is something that would serve the same function in relation to the board/committee that the High Court does in relation to the Parliament. Even if this was desirable, it would be very, very complicated and very difficult to set up – so difficult, in fact, that I have to ask why you don’t just elect the directors to the board/committee in the first place, if you think they are so superior to the “committee” members (or at least so much more trustworthy).

However, that doesn’t actually address your real problem, which is (reading between the lines) that you don’t think your organisation’s current board/committee or AGM is acting or being conducted in accordance with your constitution.

That’s not easy to fix. First up, I have to tell you that none of the regulators – state or federal – will get involved in a matter of constitutional argument. You’re going to have to sort it out for yourself.

I presume you’ve raised the issue with the board/committee and haven’t got a satisfactory answer. The next step would be going to the constitution to look at the disputes resolution procedure, or the provisions for calling a special general meeting, or both, and appealing to the membership. All of those methods, however, are slow and unreliable.

You can take the matter to the courts, which are even slower and less reliable. I certainly recommend against it.

Fundamentally, what you have is a political problem, not a constitutional problem, and it needs to be fixed by political means.

It’s coming up to Annual General Meeting time; are you able to set up a reforming slate and kick the bastards out? That said, if you can’t trust the AGM, you probably can’t trust the voters, either.

Are there any other related organisations you could join instead?

Agony Uncle

Has your organisation got a problem? A deal-making dilemma or a constitutional conundrum? Found yourself in a personality pickle or a media muddle? Our Community's resident Agony Uncle, Chris Borthwick, is here to help. Email your question to [email protected].

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