In this explanatory video, the speaker answers a question from Brian in Hervey Bay about the timing and handling of proxy votes at an AGM for voluntary incorporated associations such as sports clubs or arts groups. The speaker outlines the legal hierarchy—first checking the association’s constitution, then the relevant Association Incorporation Act, which can override the constitution. If the constitution or legislation permits proxies, the speaker describes the three common proxy types (open, directed, and mixed) and stresses that proxies must be declared and handed to the chair (or secretary) before any voting begins. Practical advice is given on how a diligent secretary should record, classify, and verify proxies, the typical requirement for a specific proxy form, and the limited use of verbal or electronic proxies. The video concludes with a disclaimer that the information is general guidance, not legal advice, and encourages seeking professional counsel when in doubt.
Chapters
Brian from Hervey Bay has asked this question: In the absence of anything in the constitution related to when proxies have to be submitted at an AGM, should they be given to the person chairing the meeting before any voting takes place? Here's my answer. Proxies can be tricky. Brian is from a voluntary organisation, so I assume he is talking about an incorporated association like a sports club or an arts club or a parents group or similar. My answer will be on the basis of that assumption. There's no common law right for people to be able to use proxy votes. That means if your constitution does not explicitly allow proxy votes, then they're not allowed. But be careful though. Particular legislation may allow proxies, and so if the legislation you operate under, like an Association Incorporation Act, if that allows proxies, then that trumps the constitution. So, initially, check your constitution. If it allows proxies, then you can use them according to the guidelines which are hopefully detailed in the constitution. If your constitution is silent on proxies, check the relevant legislation. You can do that easily on Google by typing in the name of your legislation and the state and proxies and see what it says. If the legislation allows proxies, read it carefully as to how and when they can be used. If the legislation does allow proxies and neither does your constitution, then you cannot use them. If proxies are allowed, there are usually very specific rules or ways they can and should be used. In the question which Brian has asked though, he wants to know about when they need to be given to the chair of the meeting, and the answer is before any vote is taken. Proxies are generally one of the following types: An open proxy, given to the chair or secretary or a particular person. This means that the person can exercise that proxy in any way they see fit. A directed proxy, to the chair or the secretary or a particular person. This means that the person must cast the proxy in the way the proxy directs, for or against, or for a particular person if it is an election. An open proxy on some matters and directed on others. This is to the chair or the secretary or a particular person, and this means that on some issues the vote must be cast in a particular way and on others at the discretion of the proxy holder. Proxies must be declared before any vote takes place, and a smart secretary will record the proxies at the beginning of the meeting and whether they are open or directed. A smart secretary will also sight the proxies to make sure they are legitimate. Most organisations require proxies to be presented in a particular form. It is rare and very unwise to allow verbal proxies, as they are open to inappropriate use. Technology has not yet quite caught up with proxies, but a modern constitution may allow proxies to be lodged by text, or an electric post, or an electronic post rather, or some other means. But that area is changing rapidly. So there are lots of issues here, but the essence of Brian's question is that proxies must be declared before any vote takes place. That's fair, reasonable, and appropriate. So, please understand that I accept no responsibility for anything which occurs directly or indirectly as a result of any of the suggestions or procedures I've detailed in this blog. This is not, and should not be taken as legal advice. I am not a legal practitioner. All suggestions and procedures are provided in good faith as general guidelines only, and should only be used in conjunction with appropriate advice, relevant legislation, constitution, rules, laws, bylaws, etc., and of course with reasonable judgment. If you are in doubt, seek appropriate advice.
