Who can move motions – revisited

My last article, “Who can move motions?”, provoked one thoughtful response which is the basis of this article.  The question discussed in that article was “Does a member who does not have a right to vote at an AGM have the right to put a motion to the AGM?”  My latest correspondent challenges my conclusion that only those entitled to vote on a motion could move a motion, and his arguments should be aired and may be right.

Redefining the issue

My first, general proposition was that “… those entitled to attend a meeting as members of an organisation can speak, move and second motions, and vote.”  My correspondent wholeheartedly agrees, but sees this not so much as defining the incidents of membership as exemplifying some of them.  He believes that it illustrates a deeper and more fundamental rule; that in the absence of “special customs” each member of an organisation is entitled to exercise all of the incidents of membership.  Where the organisation has rules that have been reduced to writing (such as a constitution, well-drawn or not) there seems little room for “special customs” apart from those found within, or which have come in to being with the authority of, the rules themselves.

Exercising membership rights

Clearly, any exercise of the rights of membership must be for the purpose for which the organisation was formed.  Subject to that constraint, however, the ambit of the exercise of membership rights is very wide.  Further, my correspondent argues that members are presumptively entitled to:

  • Take a full part in the governance of the organisation (the common, though not universal, establishment of a governing committee can be seen as a “special rule” modifying that presumption),
  • Use the facilities of the organisation,
  • Have access to club premises, and
  • At least arguably, be present at meetings (such as those of the governing committee) at which they may neither speak nor vote (the issue here being not whether members may participate in any meeting, but whether the ability to attend is impliedly an incident of membership even if it has not been expressly conferred).

I disagree with the last proposition, which my correspondent bases in part on an expectation that Courts would refrain from applying limitations on members further than is clearly indicated by the words used in, or as arise by necessary implication from, the constitution considered as a whole.

Procedural issues

My correspondent argues that a resolution “that the meeting go in to committee” cannot lawfully exclude from attendance someone with a constitutional right to attend.  I must necessarily concede that he is right, but that begs the constitutional question of who may attend a meeting that has “gone into committee,” an issue on which I am not aware of definitive judicial authority.

In my last article I argued that, just as a meeting’s time should not be wasted by considering a motion that is not seconded, so a person who cannot vote should not be allowed to waste a meeting’s time by moving a motion on which he or she cannot vote.  My correspondent points out that the supposed requirement that motions be seconded is only a matter of convention as, at common law, a motion does not require a seconder (Re Horbury Bridge Coal, Iron & Waggon Company (1879) 11 Ch D 109 (CA)).  Again, I must concede, as there is, arguably, no necessary connection between support for the discussion of an issue and how it is eventually disposed of.

A constitutional, not a procedural, issue?

My latest correspondent essentially argues that the question “who can move motions?” should be answered by reference to constitutional principles rather than by reference to procedural considerations, and I do not really disagree with him.

My latest correspondent suggests that if a constitution denies the “lesser ranks” a vote that does not prevent them from speaking at a meeting nor remove their ability to move a motion which he argues is implicit in the right to speak.  He asserts that his answer is not “expressed in the language of ‘motions’ and the rest of the associated procedural baggage.”  He states “A motion places its subject matter before a meeting by presenting those present with a proposition that they may accept or reject.  However convenient (and often employed) they may be, motions are not the only way in which a subject may be introduced.”

Defining constitutional rights

The Courts recognise that the rights and obligations of members in an incorporated not-for-profit entity are defined in part by the (scant) guidance provided by statute (most commonly, the Incorporated Societies Act or Charitable Trusts Act) and by whatever the constitution says.  Where the entity is unincorporated the constitution alone provides guidance, representing as it does a quasi-contract between members.

Stripped to its core, the view I sought to advance in my last article was based on constitutional principles – if someone is not constitutionally entitled to vote on a motion it seems logical to conclude that they cannot move a motion.  In essence, the contrary view is that the constitutional right to attend a meeting carries with it all the rights of attendance other than those expressly excluded by a constitution – therefore, if someone cannot vote on a motion that does not preclude them from moving a motion.

And the answer is?

As far as I am aware no Court has ever had to answer the question posed in my last article and revisited in this article.  I remain content with the opinion expressed a fortnight ago, but that is all it is, an opinion.

Despite disagreeing on the answer to the question “Who can move motions?” my latest correspondent and I agree that well-drafted rules should clearly define rights of attendance and participation in meetings.  Got that message?

This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.