Dear members I write with regret concerning the actions of Wikimedia Australia's management committee in March 2013, which have thrown the chapter into a cascade of legal illegitimacy that will continue ad infinitum unless addressed very soon. The outlines of this may be familiar to some members of the chapter, but to my surprise the issue has been pushed under the carpet. I have informed WMF Legal and Community Advocacy that there may be a problem that will impact on the the Foundation's trademark agreement with the chapter.
Legal background The chapter is incorporated in the state of Victoria under the Associations Incorporation Act 2012, and the chapter's rules are approved and registered by Consumer Affairs Victoria—although by now everyone knows that CAV doesn't normally read the rules of associations they register, aside from a quick and sloppy flick through when the association is applying to change them. The secretary is the only officer invested with legal status in the Act. http://www.wikimedia.org.au/wiki/Rules http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/F9AF0E97F6F86597CA2579F100184027/$FILE/12-020a%20authorised.pdf Problematic timeline In November 2012, chapter members directly elected four office-bearers – secretary, president, vice-president, and treasurer – and two ordinary members, all for a term of one year. The results were announced at the AGM on 25 November 2012. http://www.wikimedia.org.au/wiki/Meeting:2012_AGM/Minutes#Election_of_officers_of_the_association_and_members_of_the_committee On 17 March 2013, the committee decided to reshuffle these elected positions: the secretary would resign, the president and treasurer would swap positions, and the vice-president would become secretary (apparently the secretary's wish to resign sparked these changes en masse to the voters' decision). The committee's minutes record this as being done "all in one hit", despite advice on the mailing list that casual vacancies would need to be created first through a succession of resignations in writing. http://www.wikimedia.org.au/wiki/Meeting:Committee_(2013-03-17)#Committee_reshuffle The chapter's rules provide that an office becomes vacant only under four conditions (resigns from the chapter, becomes insolvent, fails to attend three consecutive meetings, or "resigns from office by notice in writing given to the secretary"—Rule 24(c)). None of these conditions was satisfied, and the minutes simply announced the new offices as though it were like putting out the washing. I believe the secretary, Charles Gregory, did resign in writing, but critically this was two days later, on 19 March. At the time of the meeting, then, no one had "resigned in writing given to the secretary"—not even the secretary himself. So there were no casual vacancies. The committee appears to have relied on Rule 21(4) to make the new appointments to casual vacancies that didn't exist. (As an aside, had the committee's appointment of the vice-president to the secretary's role been valid, leaving the vice-presidency vacant for more than 14 days was a breach of 21(4), as is the failure to replace Charles Gregory with a new secretary according to legal process: "In the event of a casual vacancy, as specified in rule 24, in any office referred to in sub-rule (1), the committee must within 14 days appoint an eligible member of the organisation to the vacant office ...".) In the minutes, committee member Steven Zhang "agreed to write up a formal re-shuffle motion". It's not that doing so would have made it all legal, but yes, a formal motion would have been the proper procedure. There is no evidence of such a motion, and a CAV representative apparently told this committee member on the phone that as long as the chapter's rules are complied with, everything's fine. That is not an endorsement by CAV. The AGM Under rule 12, the secretary "must cause to be sent" a notice of all general meetings, like the annual general meeting. There is no secretary, so this rule was breached and the AGM is not valid. Under rule 23(1)(b), nominations for election to the committee must be "delivered to the Secretary of the Association not less than 7 days before the date fixed for the holding of the annual general meeting". There is no secretary, so the election is not valid. The situation now *The whole musical chairs exercise in March was illegitimate, and subsequently informing CAV as required of the change in secretary was not based on a legal process within the chapter, and thus would not be recognised by the Melbourne Magistrate's Court or the Victorian Supreme Court. *There has been no secretary since Charles Gregory resigned in writing on 19 March; the committee's attempt to replace him two days before, on 17 March, is not valid under the rules. *The other changes in office bearers are not valid under the chapter's rules, since no vacancies were created under rule 24; the committee as voted in in November 2012 still holds office, minus the all-important secretary, a post that has been vacant since 19 March. *The annual general meeting was not valid, given that there is no secretary. *The election of committee members today, including office-bearers, was not valid, given that there is no secretary. *It's my understanding that the tenure of the legally valid committee (that is, those voted in at the 2012 election, minus Charles Gregory) ends on 30 November, after which there will be no committee. I suggest that the legal committee (Franklin, Raymond, Zhang, Vandenberg, and Pearce) seek legal advice as to whether anything can be salvaged. They still have a quorum of 4+. Tony
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