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Disputes

Natural Justice

The rules of natural justice must be observed when a committee of an incorporated association adjudicates any dispute between the members of the association or between the committee itself and any member of the association [Associations Incorporation Act 1985 (SA) s 40].

Examples of the rules of natural justice which are often relevant to members of community organisations are the right to:

  • know there is a matter proceeding that concerns you;
  • adequate notice that a matter is under discussion, or that a decision is to be made, including notice of any allegations against you;
  • know the procedures that the committee intends to follow in making any decision;
  • be aware of the evidence put in support of any allegations;
  • have an opportunity to present a case before a decision is made;
  • a fair hearing;
  • an unbiased hearing;
  • challenge or appeal a decision.

Mediation

If any member of an incorporated association disagrees with the way the affairs of the association are being conducted, then negotiation, mediation, conciliation or arbitration are all possible ways of attempting to resolve the problem. See ALTERNATIVE DISPUTE RESOLUTION.

Provisions in the Rules

The rules of an association will often provide ways for addressing issues that arise within the association. For example, there may be provision for a special general meeting where members can have a particular issue voted on. Special general meetings can usually only be called if a certain number of members indicate they want this.

If the association's rules allow, a general meeting of the members can take away the powers of the committee and may decide the affairs of the association.

Vote of no confidence

It is possible to put a motion that there be a vote of no confidence in a particular committee member or the committee as a whole, even if the rules do not state this (they often don't). As a matter of convention, when there is a vote of no confidence in a person, the person usually stands aside from their position. However, they do not have to do so. They may continue in their position (knowing there is 'no confidence' in them) until removed from it under the rules.

Breaches of the law

Where the association or a member breaches a provision of the Associations Incorporation Act, the Corporate Affairs Commission (part of Consumer and Business Services) may be prepared to investigate the matter.

An association or a member that breaches any other law may be sued or prosecuted.

Associations Incorporation Act 1985 (SA) section 61

Where oppressive, unreasonable, unfairly prejudicial or discriminatory circumstances exist, an association member (or a former member whose membership has ceased in the previous six months) can apply to the Magistrates Court or the Supreme Court to intervene in the affairs of the association [Associations Incorporation Act 1985 s 61]. An application to the Magistrates Court under this section is a minor civil action. (See also Minor Civil Claims.) Both the Magistrates Court and the Supreme Court have wide powers under this section to address problems in an association, but only the Supreme Court can make an order to wind up the association.

Common membership problems

Expulsion or suspension of membership

Check the association's rules to see whether the grounds and the procedure for expulsion or suspension are set out. If both grounds and procedure are stated, follow the rules. Where no grounds are stated in the rules, an example of a ground for expelling or suspending a member is 'conduct prejudicial to the best interests of the association'. If there is no procedure, or the procedure is not set out in detail, expulsion or suspension are still possible, but the rules of natural justice must always be observed.

Overturning an expulsion or suspension of membership

Check the rules to see whether the grounds used for expulsion or suspension are appropriate and whether the correct procedure has been followed. Check whether the rules of natural justice have been followed. If not, the matter may be re-opened within the association.

Even if the rules were followed, it is still possible that the expulsion was oppressive or unreasonable. Or it may be that the constitution itself is oppressive or unreasonable. In these cases court action could be taken to overturn a decision or to alter the association's constitution. The minor civil action jurisdiction of the Magistrates Court has power to hear these matters. As this is a relatively inexpensive and informal jurisdiction, it is worth considering making an application in appropriate cases. On the other hand, mediation is a free and often effective means of dispute resolution.

Allegations that the committee is not acting properly

It is usually best to attempt to define any problems and address them openly, always observing the rules of natural justice. If this does not work, mediation is often an effective solution. Check the rules for any procedures that can be used to deal with the problem, such as calling a special general meeting of all members so that the matter can be resolved or discussed. If oppressive, unreasonable, unfairly prejudicial or unfairly discriminatory circumstances exist, court action is possible, either through the minor civil jurisdiction of the Magistrates Court or the Supreme Court. See DISPUTES.

    Disputes  :  Last Revised: Thu Aug 3rd 2017
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