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.$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.

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.

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+.


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