Bruce from Gabbin in Western Australia  has asked this question:

In the absence of anything in the Constitution related to when proxies have to be submitted at an AGM, should they be given to the person chairing the meeting before any voting takes place

Proxies can be tricky. Bruce is from a voluntary group so I assume he is talking about an incorporated association like a sports club, or arts club or similar. My answer will be on the basis of that assumption. There is no common law right for people to be able to use proxy votes. That means, if your constitution does not explicitly allow proxy votes, then they are not allowed. Be careful though, particular legislation may allow proxies and so if the legislation you operate under (like an Association Incorporation Act) allows proxies, then that trumps the constitution.

So, initially check your constitution. If it allows proxies, then you can use them according to the guidelines which are hopefully detailed in the constitution. If your constitution is silent on proxies, check the relevant legislation – you can do that easily on Gooogle by typing in the name of your legislation and the state and proxies and see what it says. If the legislation allows proxies, read it carefully as to how and when they can be used. If the legislation does not allow proxies and neither does your constitution, then you cannot use them.

If proxies are allowed, there are usually very specific rules or ways they can, and should be used.

In the question which Brian has asked though, he wants to know about when they need to be given to the chair of the meeting.

The answer is before any vote is taken.

Proxies are generally one of the following types:

  1. Open proxy given to the chair or secretary or a particular person – this means the person can exercise that proxy in any way they see fit.
  2. Directed proxy to the chair or secretary or a particular person- this means the person must cast the proxy vote in the way the proxy directs – for or against or for a particular person if it is an election.
  3. Open proxy on some matters and directed on others – to the chair, secretary or particular person – this means that on some issues the vote must be cast in a particular way, and on others at the discretion of the proxy holder.

Proxies must be declared before any vote takes place and a smart secretary will record the proxies at the beginning of the meeting and whether they are open or directed. A smart secretary will also “sight” the proxies to make sure they are legitimate.

Most organisations require proxies to be presented in a particular form. It is rare and very unwise to allow verbal proxies as they are open to inappropriate use.

Technology has not yet caught up with proxies but a modern constitution may allow proxies to be lodged by text, or an electronic post or other means. That area is changing rapidly.

So there are lots of issues here but the essence of Bruce’s question is that proxies must be declared before any votes take place. That is fair, reasonable and appropriate.

 

 

 

Please Note: The author accepts no responsibility for anything which occurs directly or indirectly as a result of using any of the suggestions or procedures detailed in this blog. This is not, and should not be taken as legal advice. All suggestions and procedures are provided in good faith as general guidelines only and should be used in conjunction with appropriate advice, relevant legislation, constitutions, rules, laws, by-laws, and with reasonable judgement. If you are in any doubt, seek appropriate advice.
David Julian Price

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