PBC constitutions also known as rule books include information about the PBC’s decision making processes. A PBC's rule book will outline how decisions are to be made in meetings and set out the procedures for dealing with internal disputes and complaints.
Under section 212.20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) there must be a majority quorum (or set number of people present) for director's meetings. The quorum must be present at all times during the meeting. This is an exemptible set law and not a replaceable rule. If a PBC believes that having a majority quorum is not suitable for their circumstances they can apply to the ORIC Registrar of for an exemption to the rule.
But this rule can also be changed when establishing a rule book. For example, a corporation that represents different groups of native title holders where each group nominates their director/s might add an extra rule for a quorum that requires a minimum number of directors from each group to be present.
Section 212.25 of the CATSI Act is a replaceable rule requiring resolutions at directors meetings to be passed by the majority of directors.
Whilst most rule books included a rule that decisions in director's meetings are to be made by a majority show of hands, some rule books specify that decisions must be made in a different way. These included making decisions by consensus, considering the role of family and descent groups in decision making and using traditional methods of decision making and elders councils.
Example - Ngarluma Aboriginal Corporation RNTBC
Ngarluma’s rule book says that resolutions in directors’ meetings are to be made by majority vote. If there is an even vote the board must consult with the council of elders. If after considering the council of elders’ views, the directors’ and votes remain equal the question shall be decided by the members at the next general meeting.
The CATSI Act s.212.25 on passing a director’s resolution is a replaceable rule which states that during directors’ meetings the chairperson has an additional casting vote in addition to any vote they have as a PBC member. Most PBC rule books include this replaceable rule.
The CATSI Act s.201.70 details a quorum requirement for general meetings which is determined by the number of members of the corporation. This is a replaceable rule that PBCs can alter to better suit their needs and circumstances. ORIC’s ‘rulebook info-kit’ and guide to writing good governance rules offer an alternative quorum suggestion for PBCs.
A high percentage of PBCs have changed the default quorum for general meetings: either defined as a percentage of members or a specific number of members.
Some PBC rule books had an additional quorum requirement related to a family, descent or elder group requirement. These rules include specifications such as requiring at least one member from each family or descent group or a certain number of elder members to be present for general meetings to go ahead.
The CATSI Act (s.201.125) includes a replaceable rule which states that during general meetings the chairperson has a casting vote in addition to any vote they may have as a member. As of the beginning of 2017 the majority of PBC rule books permitted the chairperson to have a casting vote in general meetings.
The process for voting in general meetings is a replaceable rule within the CATSI Act. PBCs can choose to adopt this rule as it is or to change this rule to better suit their needs.
How voting is carried out and replaceable rules
Section 201.125 of the CATSI Act outlines how voting is carried out and replaceable rules. For example:
- A resolution put to the vote at a general meeting must be decided on a show of hands unless a poll is demanded.
- Before a vote is taken the chair must inform the meeting whether any proxy votes have been received and how the proxy votes are to be cast.
- On a show of hands, a declaration by the chair is conclusive evidence of the result, provided that the declaration reflects the show of hands and the votes of the proxies received. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.
Note: Even though the chair's declaration is conclusive of the voting results, the members present may demand a poll (see s.201.130).
The majority of PBCs have adopted the default rule on voting in general meetings and make resolutions by a majority show of hands unless a poll is requested.
The second most popular procedure for voting in general meetings is to make decisions by consensus and if consensus is not possible after reasonable effort has been made, the resolution can then be put to a majority vote. However, most rule books which state that decisions are to be made by consensus do not specify what is meant by consensus.
Some PBC rule books have additional requirements for decision making processes such as specifying that decisions are to be made in accordance with traditional laws and custom, enabling postal voting, requiring a 75% majority and referring tied votes to an elders group.
Other alternative decision making rules in PBC rule books include processes that pay more attention to the family, descent, language and/or lineage groups within the PBC membership group, with smaller groups meeting separately to discuss resolutions before reporting back to the larger group. A few PBCs have developed decision-making flowcharts to visually display the process by which decisions are made.
Example - PKKP Aboriginal Corporation RNTBC
Decision making for the PKKP PBC follows a process by which information is presented to a group as a whole before members split into their language groups to discuss the proposed resolution. Each language group has one vote and if the resolution has an equal amount of votes on each side, it is taken not to have passed.
The CATSI Act has a section to allow proxy voting in PBCs. A proxy is someone who attends and votes on behalf of another corporation member at a general meeting. The proxy rule is a replaceable rule within the CATSI Act and PBCs can choose whether or not to include this rule within their rule book. As of January 2017, 78% of PBC rule books included the proxy rule.
The CATSI Act is currently under review. Any amendments made will likely impact on rules about decision making. Keep updated bout the CATSI Act Review on the NIAA website.
- Making decisions, ORIC, 2017
- The Rulebook Info-kit, ORIC, 2011
- Rule book, PBC website
- A guide to writing good governance rules for prescribed bodies corporate and registered native title bodies corporate, ORIC, 2011
- Decision-making: Constitutions of Prescribed Bodies Corporate, A Blechynden, AIATSIS, Canberra, 2017
- Fact sheet: Legal context for PBC decision making, Aurora, 2012
- CATSI Act review, NIAA