Commissioners Corner: Returning Officers Roles Explained
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.
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our committee had a secret ballot the vote closed on the day of the meeting at 3.30pm.
Having returned from overseas, An owner hand-delivered their secret ballot vote into the Body Corp’s mailbox by 11am.
The Body Corp had unknowingly to the owner collected the business mail at 10am.
The returning officer at the meeting said in effect to the Owner’s proxy “too bad so sad” .
The owner assumed that the returning officer would collect mail up to the time of the meeting.. Is this where a committee should ensure that the returning officer is instructed to either empty’s the mail box just prior to the meeting or that all owners are aware that voting closes at a specific time on the day that the voting closes.
Hello Glennis and thanks for your query. I recommend you contact the Information and Community Engagement Unit of my Office for some further information about this matter, on 1800 060 119.
Our complex is a Building format, is this different to a Standard module?
Hello Cedric and thanks for your query. Yes, they are different things. To obtain more information about plans or modules, I recommend you contact the Information and Community Engagement Unit of my Office on 1800 060 119 or visit our website.
Hi Chris, I am confused by a few things you have mentioned regarding the appointment and responsibilities of a RO as I called your office and was told that ALL decisions are made, and are up to, the RO, not the BC or BC manager. In this article you say the BC appoints the RO (I assume the Committee have the responsibility on behalf of the BC to decide these matters as nothing was put to owners) and the BC (again Committee?) decides what responsibilities the RO will have. We had a recent secret ballot where the instructions on the ballot paper said to sign the document whereas the Particulars tab said DO NOT SIGN or make any identifying marks on the ballot paper. I brought this to the BC managers attention and phoned the RO to see if owners signed the ballot paper if they would be accepted. I got no answer from either until the EGM when the BC manager presented a document, prepared by Lawyers, listing previous cases where decisions had been made about the validity of ballot papers. This was not helpful and certainly not timely aft the fact, however it appeared after the votes were counted that the RO had (luckily) not rejected any ballots due to them being signed. Very confusing as to who made what decisions here. I was surprised to see that straight after the results were read out the RO placed all ballot papers and particulars tabs in an envelope and sealed them up for no one to see. It is my understanding they are BC records yet they have been sealed. The reason this is very concerning for me is that we have one Committee member who has been on our Committee for almost 20 years and has great “influence” over a large majority of owners in our complex. I have also found out that she goes knocking on owners doors, or rings them up and basically is intimidating owners to give her their proxies at every General meeting. She always has the max number of proxies allowed. I know proxies aren’t allowed for secret ballots but we had some ‘unscrupulous’ behaviours happening prior to this EGM, and as the results were quite shockingly FOR what this Committee member was in favour of, it leads me to question if at least some of the ballots were not sent in by the actual owners. I am quite floored that if this is the case then we have no way of knowing as no list of which owners voted is recorded in the Minutes and I was not even allowed to sight the particulars tabs before they were sealed up in an envelope. I believe knowing this process and the fact that details cannot be checked leaves it open to unscrupulous behaviours by some. The only way owners are identified as having filled out, or just submitted, the ballot paper is if they hand it in person on the day. Those sent in could have been filled out and sent in by anybody. I am very suspectful of this as the motion was put up by our Caretaker to extend his contract and he was given EXTRA voting papers and tabs to hand out from his office Manager/Caretaker & he even intersected the mail and hand delivered the EGM papers to some owners doors. I would conclude in an effort to personally put his case forward and request they vote YES. Not having identifying marks or signatures on the ballot paper makes it easy for anyone to fill out and then get the owner to just sign the particulars tab or anyone could even sign it themselves knowing it will not be checked in anyway by any details of the actual owner.. I would like your feedback on your thoughts on this and possible changes to the process to stop any type of fraudulent actions. I would also ask if there is any way an investigation to check secrets ballot results can happen. The problem we have here is there is so much intimidation by certain people placed on so many, especially elderly owners, that even if there was an investigation and they were asked they may just confirm that they voted so as to not fear any repercussions. If it is known that Some people were overseas, a vote may have been cast for them that they are totalling unaware of. Thank you for your time and I look forward to reading your response.
Hi Cindy and thanks for your comment and query. My Office does not undertake investigations and instead you may be able to consider initiating a dispute resolution application if you consider there is a dispute. I suggest contacting my Office on 1800 060 119 if you require further information about this.