When it comes to elections of any kind, one of the more common phrases one hears is “returning officer”.
There are slightly different meanings and responsibilities for returning officers depending upon the type of election or the country in which the election is held.
In general, a returning officer is the officer responsible for ensuring that the election in question is properly conducted, in accordance with the relevant rules for that election. One of their most important roles is calling the result of the election.
A returning officer has similar responsibilities in a body corporate context. Those responsibilities are provided for under section 91 of the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). Responsibilities may vary according to the applicable Module and for the purposes of this article I will refer to the Standard Module.
The key points to consider about a body corporate returning officer are:
• the scope of their responsibilities
• when a returning officer must be appointed (as opposed to the body corporate deciding to do so)
• eligibility to be a returning officer.
In terms of responsibilities, the Standard Module provides that a returning officer has any or all of the following responsibilities:
• deciding questions about eligibility to vote and voting entitlements
• receiving secret voting papers
• counting votes, or inspecting the counting of votes, and
• deciding whether a vote is valid.
The body corporate decides on which of these responsibilities are applicable to the returning officer, while the officer’s instrument of appointment (e.g., their contract) should also state their responsibilities.
What this means in practical terms is that my Office cannot tell a body corporate what the responsibilities of its returning officer are—that is something the body corporate needs to determine and set itself.
The key message here is that these responsibilities should be clearly established at the outset. This will avoid a situation where a body corporate gets to a point where a returning officer is required and then either they or the returning officer is not clear on their responsibilities.
So, then, when must a returning officer be appointed?
The Standard Module provides that a returning officer must be appointed “for each general meeting where a motion is to be decided by secret ballot”.
The regulation modules, as well as the Body Corporate and Community Management Act 1997, provide for a range of situations in which a secret ballot is required. Secret ballots are generally required for matters of high significance, e.g., where there is a significant contract or appointment to be decided upon. A body corporate may also decide by ordinary resolution that a motion be decided by secret ballot, or the committee may recommend a motion be decided by secret ballot.
Otherwise, it is up to the body corporate whether it decides to appoint a returning officer for any other general meeting.
Finally, in relation to eligibility to be a returning officer, the Standard Module provides that the following persons are not eligible:
• a lot owner
• a person engaged as a body corporate manager or service contractor, or authorised as a letting agent, or
• an associate of any of the people mentioned in the dot point above.
The Standard Module does not state who should be a returning officer. That said, it stands to reason that when a body corporate is appointing a returning officer, they would want to consider things such as what background as a returning officer—or similar profession—the person has, or whether the person might be sufficiently focussed on detail to ensure they can carry out their responsibilities.
My Office is unable to tell a person how to carry out their role as a returning officer, which means that the onus is on the returning officer at all times to ensure they are aware of their responsibilities.
As I am sure you can appreciate, the responsibilities and execution of those responsibilities, of a returning officer can be crucial in deciding significant matters for a body corporate. Accordingly, if a body corporate has any doubts or concerns about who or how to appoint a returning officer and what that officer will then actually do, they may wish to seek qualified legal advice.
For further, general body corporate information please contact my Office on 1800 060 119 or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.