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.
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.
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
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.
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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