The role of members of not-for-profit incorporated associations and companies limited by guarantee includes holding the Board members[1] accountable for the exercise of their powers. This is consistent with ACNC Governance Standard 2, which provides that those not-for-profits that are registered charities must take reasonable steps to be accountable to their members and must allow their members adequate opportunities to raise concerns about how the charity is run.
Members who have concerns about how a not-for-profit is being run or have a grievance with the Board may request the governing body call and hold a general meeting. The request will often include motions for consideration at the general meeting. Common motions proposed include removing one or more members of the Board or amending the Constitution.
Ascertaining the rights of the members (and the obligations of the Board) in relation to members’ resolutions and requests for general meetings requires a careful review of both the relevant legislation[2] and the organisation’s governing document[3]. Registered charities should also be aware of section 111L of the Corporations Act 2001 (Cth), which provides that registered charities are exempt from a number of provisions of the Corporations Act, including the provisions which relate to member requests for meetings.
While it is important to ensure the Board is accountable to the members, not every member request will be valid. It may not be in the interests of the members as a whole for the Board to entertain an invalid request.
A not-for-profit or charity Board that receives a request for a general meeting should give consideration to the following matters.
Be aware of any requirements set out in the governing document or legislation in relation to the time within which notice of the meeting must be sent or the meeting held. In some cases, if the Board fails to act on a valid request within the required timeframe, the members may be able to convene the general meeting themselves at the organisation’s cost.
Assess the validity of the member’s request itself. Key considerations include whether:
If the request is invalid, the Board should notify the requesting members that it will not proceed to convene a general meeting and give its reasons.How the Board must respond to valid request for a general meeting will depend on the governing document and legislation. In some cases, the Board is required to act on a valid request and proceed to convene a general meeting. In other cases, the Board is not required to act on a valid request, but failing to do so will enliven the requesting members’ right to convene the meeting themselves.
The second matter for assessment is the validity of any motion(s) that the requesting members want considered at the general meeting. Key considerations include whether the motion conflicts with the governing document or relevant legislation. A motion must not go beyond the legal powers of the body or its purposes. For example, the members may not, in general meeting, pass a resolution requiring the organisation to do something that is inconsistent with the organisation’s governing document – instead, they must first pass a special resolution (and comply with any statutory process) to amend the governing document itself.
If the motion is invalid (and the meeting request discloses no other residual valid purpose for the meeting), the governing body is not required to convene a meeting[5]. If the governing body does not convene a meeting in these circumstances, the requesting members’ right to convene the meeting themselves (if any) is not enlivened.
The Board may resolve not to call a meeting. If the Board does so because the meeting request or any motion was not valid, the requesting members will often seek to fix any identified issues and again request a meeting be convened. The Board should consider engaging with the requesting members in this interim period in order to ascertain whether their concerns can be addressed without convening a general meeting. This may reduce the potential for a disruptive and divisive general meeting and ensures the Board is giving members a fair opportunity to raise concerns.
If the Board resolves not to call a meeting in circumstances where it is choosing not to respond to a valid request, the Board should prepare for the possibility of a member convened general meeting. The members will ordinarily be entitled to access the member register in order to enable them to send out a notice of meeting. While the Board is not responsible for convening the meeting, it will usually be in the organisation’s best interests for the Board to ensure (if possible) that any procedural requirements for a properly convened meeting are met. This is because the organisation may be placed in a legally uncertain position if the meeting is improperly convened but seeks to pass resolutions that are binding on the organisation.
If both the request and the motion(s) are valid, the Board may call and hold a general meeting. Practical considerations for holding a meeting at the request of members include:
For more information or guidance regarding responding to member requests for general meetings, please contact us.
[1] In incorporated associations the governing body may be referred to as the ‘Committee’ – we have used the term ‘Board’ in this article to refer to both Boards and Committees.[2] For a company limited by guarantee the Corporations Act 2001 (Cth) applies. For an incorporated association, the associations legislation in the relevant State or Territory applies.[3] For a company limited by guarantee, this will be a Constitution or Memorandum and Articles of Association. For an incorporated association, the entity may operate according to Model Rules or may have adopted its own Rules.[4] Gratton v Carlton Football Club Ltd (2004) 51 ACRS 29[5] National Roads & Motorists’ Association v Parker (1986) 6 NSWLR 517, Queensland Press Ltd v Academy Investments No 3 Pty Ltd [1988] 2 QD R 575
Available slots are limited. If you are still wanting to book a session and/or decide on topics, we are currently experiencing high demand for the following sessions:
We will have a discussion on tailoring, pricing and scheduling based on your individual School’s requirements. To make an enquiry please call Caryn Fitzsimons on 9843 0418 or email cfitzsimons@moores.com.au.
The Commissioner’s current position on school building funds is set out in Taxation Ruling 2013/2 (TR 2013/2). In Buddhist Society (No 2) the Federal Court found that TR 2013/2 had inappropriately elevated factors referred to in case law to the level of “prerequisites or inherent requirements” for school building funds and that a more holistic approach was required. The Court preferred the broad ‘ordinary meaning’ of the term ‘school’ set out in dictionary definitions and in case law and cited with approval Barwick CJ’s statement that:
“…a ‘school’ is ‘a place where people, whether young, adolescent or adult, assemble for the purpose of being instructed in some area of knowledge or of activity”[1] (emphasis added).
Importantly, in Buddhist Society (No 2) the Court found that:
While these factors might be considered when considering whether a set of factual circumstances met the ordinary meaning of ‘school’, they are not requirements in all cases.
The matter was referred back to the Commissioner for further consideration and determination.
TR 2013/2 is applied by the ATO when assessing new applications for the endorsement of school building funds. It has also been used in recent years as the basis for an audit of pre 2013 approved faith based school building funds. Buddhist Society (No 2) suggests that new applicants and the operators of existing school building funds may have grounds to argue for a broader, more holistic application of the ordinary meaning of school rather than the strict application of the indicia set out in TR 2013/2. This may improve the ability of non-traditional schools and faith based organisations co-locating with schools to fund (or partially fund) the acquisition, construction and maintenance of buildings with tax deductible gifts.
The Commissioner may yet appeal the Federal Court decision. If the decision is not appealed, TR 2013/2 will likely require review to reflect the decision.
Moores regularly supports clients to establish and ensure the ongoing compliance of school building funds (as well as other deductible gift recipient funds and entities). Please contact us if we can assist you further.
[1] Cromer Golf Club Ltd v Downs (1973) 47 ALJR 219
We’re aware that the mental health and wellbeing of students is a focus of the Victorian Government at this time of transition. With the introduction of rapid antigen testing for students, additional stresses may be introduced to their lives.
The Commission for Children and Young People took a snapshot of what young people and children said about their experiences of Victoria’s lockdowns. It included their reflections on mental health and wellbeing, education, the impacts of remote learning, safety and security at home and the future.
Some common issues faced by students in returning to face-to-face learning include:
The school owes a non-delegable duty of care to their students to take reasonable measures in the circumstances to protect students from risks of harm that are reasonably foreseeable. The duty extends beyond the scheduled school day. Schools also owe a similar duty of care to their teaching staff.
Ways to assist schools in meeting their duty of care obligations include:
“As a Clinical Psychologist supporting children and adolescents throughout the COVID-19 pandemic, I have had many conversations with teachers around supporting their student’s mental health. Prior to the pandemic approximately 1 in 5 youth struggled with a mental health disorder. We know this incidence has risen over the past 19 months as students have had to pivot and adapt to the ever changing new normal.
My message to educators and to students is to be kind to yourselves and allow time for adjustment to in-person learning. Students may have issues reconnecting to peers and managing classroom and learning expectations. When students feel supported by teachers, they are more likely to feel like the classroom is safe and will engage in learning. Teachers can help by providing a space for calm and a space for being perfectly imperfect.”
Contact Dr Maree Dellaportas via email at mareedellaportas@gmail.com
Moores recommend schools consider implementing the two key documents to equip staff to manage and promote the well-being of students returning to campus:
Please contact us for further assistance.
The media organisations had created a Facebook page, and posted content about Mr Voller. Members of the public (third parties, unrelated to the media organisations) had then commented and posted defamatory comments on that Facebook page. The High Court found that the organisations, by running the Facebook page, had facilitated and encouraged the defamatory comments, and were therefore legally responsible.
This decision highlights the risks in facilitating and encouraging the posting of comments by third-party users on webpages that an organisation controls. Simply allowing comments – or not removing them – may be seen as “facilitating and encouraging” the publication of those comments.
There is an increasing scope of activity for which schools need to take responsibility as our world becomes increasingly digital.
Ministerial Order 870 considers the ‘school environment’ as any place made available to students by a school. This likely includes digital spaces. Social media blurs the line between home and school life, and means schools may need to take additional steps to ensure its students are safe and protected from risks presented in the online space, such as bullying or grooming.
Bullying online via social media can have significant impacts on students’ mental health. Also, moving digital for education by using social media and other software platforms can increase the risks of data breaches, causing harm to and interfering with the privacy of students and other community members.
If harm occurs via school platforms, like the Voller case, the school could also be liable for defamation.
Our experienced education team can help you review Codes of Conduct to ensure online bullying or defamation is addressed in your acceptable standards of behaviour. We can also help with a Social Media Policy. It is important to ensure that enrolment documents and any grievance procedures link to codes of conduct and acceptable standards of behaviour so your school is empowered to take action.
We also offer duty of care training for schools specifically addressing social media and digital environments.
[1] Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.
The rapid antigen tests will be offered to unvaccinated and partially vaccinated students, primarily those aged under 12. The aim will be to allow them to return to school after seven days of quarantine, rather than 14.
Fully vaccinated students who are primary close contacts of a positive case at school will not be offered at-home rapid antigen tests, as they are already only required to quarantine for seven days.
The move has been welcomed by educators and parents, who are concerned about the many months of interrupted learning in Victoria and the impact on young people’s wellbeing and learning.
To optimise students’ learning and limit the spread of COVID-19, schools will need to ensure they have a policy and procedure for rapid antigen testing. Requirements need to be clearly communicated to parents as well, to ensure testing and attendance is done properly. Schools will also need to consider the feasibility of dual-stream teaching – that is to students at school, and remotely to students in quarantine. If this is not feasible, then alternatives for students in quarantine need to be implemented and communicated.
At present, unvaccinated and partially vaccinated students who are primary close contacts of a positive case at school are required to quarantine for 14 days before returning to school. From Monday 15 November, they will only need to quarantine for seven days before returning to school, provided they:
They will also need to return a negative PCR test on day 13 of their quarantine in order to conclude their quarantine on day 14 and return to school on day 15.
PCR tests are free of charge and can be obtained from a COVID-19 testing site. Rapid antigen tests will also be provided free of charge and are able to return a test result within 15-30 minutes. Whereas PCR testing results must be provided directly to schools, rapid antigen testing results must be provided to schools via the Department of Education and Training’s web-based form.
The Victorian Government has secured 200,000 rapid antigen tests for schools, and more are expected to arrive each week. Once received by schools, they will be distributed free of charge to unvaccinated and partially vaccinated students who choose to opt-in to undertake rapid antigen testing. Students who choose not to opt-in must quarantine for 14 days and return a negative PCR test on day 13 of their quarantine in order to return to school from day 15.
Rapid antigen tests are relatively low cost and can determine whether an individual is likely or not to have COVID-19 within a short space of time. For these reasons, they will be suitable for daily use by students prior to their school day and able to maximise school attendance for students who return negative results. Ultimately, the provision of free rapid antigen testing is likely to:
However, there are likely to be a number of challenges associated with rapid antigen testing. In particular:
There are also industry calls for further reliance on rapid antigen testing, so that students can “test and stay” at school and avoid a quarantine period altogether. The seven day period is considered too long by many in circumstances where remote learning may not be offered to quarantining students, given the challenges of providing “dual-stream” learning. If implemented, there will be further requirements for schools in relation to the physical environment at school, perhaps similar to the VCAA guidelines in place at present for senior exams.
The Department of Education started piloting the use of rapid antigen tests in 20 schools affected by COVID-19 outbreaks from Monday 8 November. The pilot program aims to determine:
The Department of Education is yet to publish the results of the pilot. The results will be used to inform the rollout of rapid antigen testing to all schools from Monday 15 November.
We can help you to:
A Director ID is a unique 15 digit number issued to a director (or someone who intends to become a director) to prevent fraud and reduce the use of false director identities. Directors must apply once and will then retain their Director ID forever.
All directors of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation will need a Director ID. This includes:
All Directors can apply for a Director ID now. The following table sets out the deadline by which you must apply.
The Australian Business Registry Services website provides information on how to apply for a Director ID.
If you do not apply for a Director ID within the timeframes set out above, you may face civil and criminal penalties or be issued with an infringement notice.
After receiving your Director ID, you will need to provide the number to the company or incorporated association’s record holder (usually the Secretary).
If you would like further information, please do not hesitate to contact us.
Below is our summary of these 5 National COVID-19 Privacy Principles and some tips for how to implement them in your organisation.
The national regulator, the Office of the Australian Information Commissioner, has also recently published privacy guidance for businesses collecting COVID-19 vaccination information that draws on these 5 key principles.
Privacy by design is the concept that privacy protections should be built into systems from the beginning to ensure privacy is an automatic feature of information handling processes.
This is why a change in information handling practices – such as starting to collect vaccination information – is the perfect time to reflect on how your organisation meets its privacy compliance obligations and can better design privacy into technical systems and human processes.
Moores has expertise in privacy, from technical data flow assessments and audits to better understand how you can manage your data assets, to privacy training and refreshers to staff, and helping you respond to data breaches.
The data breach was caused by an email sent to 105 people in February 2020 using the carbon copy (CC) function instead of blind carbon copy (BCC). This meant the email addresses were visible to all recipients.
Because email addresses often identify people’s names, this data breach identified 65 people by name. Due to the nature of the email and the charity – HIV Scotland – the breach could also have led to assumptions about people’s HIV status or risk. This is understandably very private information, and in Australia, would be classified as health and sensitive information under the Privacy Act 1988 (Cth).
A similar risk in the current environment is around COVID-19 vaccination status. Organisations need to be particularly aware of the dangers of collecting sensitive information via email. For example:
Also remember, when replying to emails, the personal information that could be disclosed below in the email chain.
The danger of the CC is present for Australian organisations too. Between January and June 2021, the Office of the Australian Information Commissioner (OAIC) reported:
See the OAIC’s report for more information about Australian data breaches.
We recommend you:
In response to this data breach, the ICO is encouraging all organisations to revisit their bulk email policies to ensure they have robust procedures in place. This is particularly relevant for charities and not-for-profit organisations for whom personal information (such as contact details) is central to the very nature of their work.
We can help you prepare for data breaches through privacy training, privacy audits and designing custom privacy and data protection procedures and internal tools for staff.
We can help you respond to a data breach by assessing the breach under the Notifiable Data Breach Scheme, and helping you implement a Data Breach Response Plan.
By releasing the framework, the VRQA is empowering Victorian schools to predict and understand intervention action.
The VRQA may intervene in the administration and running of a school to protect students when child safety risks are identified, for example, through media reports, referrals from other agencies such as the Commission for Children and Young People, or complaints.
The framework identifies indicators of increased child safety risks, and an increased need for high-level intervention as:
This demonstrates the importance of strong reporting processes and procedures in schools, as well as regular refresher training for staff to empower them to meet child safety reporting obligations. For more information about identifying child safety blind spots, you can watch our 2nd September webinar here.
The VRQA framework also explains the scale of intervention it might take in a school when responding to child safety risks. The lower end of intervention involves contacting the Principal, or writing a letter to the school, while higher level intervention involves sending Authorised Officers to the school to investigate.
Moores has extensive experience dealing with VRQA reviews of schools, handling intervention action such as enforceable undertakings, and helping you do the ground work to prevent intervention in the first place. We can help implement strong child safety measures and governance practices to best equip your school to provide a safe environment for all students.