Who can move motions?

The general rule is that those entitled to attend a meeting as members of an organisation can speak, move and second motions, and vote.  But all is not always what it seems, as sometimes members in different categories of membership may be given differing rights – thus, in a professional organisation associate members may be able to attend meetings but may not have the rights enjoyed by full members.  Well-drawn constitutions will, of course, make this clear.

When Rules are not clear

It is not uncommon for constitutions to confer on the “lesser ranks” a right to attend and speak, but not vote.  Some months ago, a reader asked me to comment on a situation where a club had various categories of members, of which only  full active and life members have voting rights at general members’ meetings.  Because a group of other members sought to put a motion to a meeting at which they could not vote, the question posed of me was “Does a member who does not have the right to vote at an AGM have the right to put a motion to the AGM?”  I prefaced my response by commenting that in writing my book Society Law in New Zealand (section 8.3 of which covers the right to attend meetings, and Chapter 10 motions and voting processes) I never conceived of a set of rules that did not adequately define who could attend, speak, and move motions at meetings, adding that perhaps the Club should sue whoever drafted the rules!

Thinking the issue through

While I was not aware of judicial authority, my immediate reaction to the question was that only a member who can vote at a general meeting should be able to propose a motion to the meeting.  In the absence of authority for that response, resort must be made to the first principles about societies.

Given the democratic principles underlying the establishment of societies (see Bath v Singh, High Court, Auckland, CIV-2010-404-761, 20 October 2011 at [40]), and in the absence of any rule to the contrary, all members of a society must have the right to attend and vote at general meetings of members.  As the old New Zealand Jaycees’ “Slide-A-Rule” for meetings said “Right to move, second and reply applies only to member in good standing or as per by laws.”

Who can participate in meetings

If a person should not be participating in a meeting then it seems obvious to me that such a person should not be moving, speaking or voting on motions at the meeting.  In general terms, unless there is an express constitutional provision authorising the suspension of membership rights (Wilkie v Kiely (1914) 33 NZLR 816), members have a fundamental right to participate in general (members’) meetings by moving, speaking or voting on motions.  That right should be limited only if the member:

  • Has a personal (usually financial) interest in the subject-matter of the debate, which gives rise to an actual or potential conflict between those personal interests and those of the organisation, or
  • Is in default under the rules (for example, by failing to pay a subscription by due date),
  • Has had membership rights suspended for some reason under the rules (usually as a disciplinary measure), or
  • Has been required to leave the meeting under standing orders (usually for improper behaviour at the meeting).

The meeting participation rights conferred by a constitution on different classes of members may, however, vary.  A constitution may (and often does) provide that “junior,” “student” or “associate” members, for instance, do not have an express right to speak or vote at meetings.  Of course, a well-drafted constitution should make clear exactly what rights members do or do not have.  Where the rules explicitly provide that only certain membership classes have the right to speak or vote at meetings, it seems to me that it must follow that other members cannot speak or vote, nor move or second motions at those meetings as those rights are intimately associated with decisions that only those entitled to vote can make.

Attendance at meetings by non-participants

It is not uncommon for rules to allow people who cannot participate in a meeting to attend and observe meetings.  For example, many potential members visit and attend a meeting before deciding whether or not to join, and professional advisers commonly attend meetings of organisations at which they cannot vote.   However, only members entitled to speak and vote should remain (together with anyone expressly named in the motion) if the meeting passes a procedural motion That the meeting go into committee.”  Further, a chairperson may ask non-members to leave, for instance, if they abuse the privilege of attendance by being disorderly.

Moving motions, speaking and voting

If people not allowed to vote can be excluded from further attendance on a motion to go into committee, it seems fair to infer that they cannot move, speak or vote on motions at any time.  It would, indeed, be strange if they could move, speak or vote on motions in a meeting that has not gone into committee, yet be unable to do so when precluded from further attendance once a meeting has gone into committee.

One reason sometimes given for requiring a seconder for a motion is that meeting time should not be wasted where the motion is unlikely to be supported by the meeting if no seconder is found – thereby avoiding wasting members’ time.  Similarly, it can be strongly argued that allowing someone who can’t vote to move a motion would potentially waste the time of a meeting.

It may also be pertinent to compare the rights and privileges of different classes of membership and the differing levels of subscription they pay to determine whether all members, of whatever classification, may move motions.  Where the rules are clear, it is common to find that those who have greater membership privileges and subscriptions have voting rights, while those with fewer privileges and lower subscriptions may not have voting rights.  That may provide some rationale for inferring that the right to move, speak or vote on motions at general meetings is subject to restrictions commensurate in some way to the rights and costs of different categories of membership.  That is a common distinction drawn in rules – but well-drafted rules should clearly define rights of attendance and participation in meetings.

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.