AAPMBF members.
You have before you a set of ballot papers intended to implement changes to the rules of the AAPMBF. Those changes ‘prima facie” appear to be reasonable, however a closer examination reveals a document that is legally incompetent, technically flawed, and one could also opine, deceitful.
Nowhere in the documentation forwarded to you, is there a declaration of a timetable for the ballot process. At the very least the ballot MUST include a closing date as determined in accordance with Rule 24 of the fund. The absence of a specified date renders the outcome of any vote, vulnerable to a legal challenge as to the validity of any declared result of said vote. Did it close yesterday, will it close next Christmas or sometime in between? The ballot is legally incompetent as it does not comply with the Rules of The Fund.
The inclusion of Rule 24 (c), seeks to impose conditions upon “the constitution” of Austair.
To the best of my knowledge, Austair, a nominee company, at this time:
· does not have a constitution.
· We as members of AAPMBF are NOT members of Austair. Austair has no members, just nine “Directors”.
On that basis the proposed changes to Rule 24 are legally incompetent as we non-members of Austair cannot impose conditions upon a separate legal entity.
There are no “Transitional arrangements”
The changes to the rules eliminate the positions of the current trustees of the AAPMBF, ie , supposing a valid vote in favour of the proposed rules, the positions of the current Trustees of the AAPMBF will no longer exist. It is proposed that, henceforth, there will be no Elected Officials of the AAPMBF as currently defined, only “Directors of Austair”. The proposed changes declare that “Directors of Austair” will be elected officials. To date there are no “ELECTED” directors of Austair, neither is there a mechanism for the members of AAPMBF to elect directors of Austair. The current nine “Directors” have been “APPOINTED” by (presumably) the other members of the Board of Austair. At no time have any of the Ballots for Trusteeship of the AAPMBF been annotated with any reference to the Board of Austair. The proposed changes are legally incompetent as they seek to impose conditions on the Board of a separate legal entity. More importantly they propose the removal of the current elected administration and yet have no “elected” administration to put in their stead. Until Austair has properly elected Directors, the fund will have no elected administration.
Eligibility for the position of Trustee
Rule 1 of the AAPMBF stipulates that a “Trustee” be a “person or persons”. Austair is not a person and therefore not compliant with the requirements of the rules. The rule changes are legally incompetent because they seek to appoint a legal entity rather than a person or persons to the Trusteeship of the Fund.
Retrospectivity
In his covering letter, Capt (ret). O’Neil proposes that the rule changes, if passed, will take effect from the 1st May 2010. Rule 24 of the Fund clearly states that changes to the rules can only follow a resolution by the membership. There is no provision for retrospectivity. Traditionally rule changes have complied with that philosophy, in that they only take effect from the declaration of the ballot. As the ballot process requires (at least) 42 days notice, in writing, at the very earliest, any rule changes effected by this current procedure can not take effect until at least 42 days following the mailout of the ballot papers, May 11th. The proposed changes are legally incompetent because they seek to invoke retrospectivity, which is not authorised by the Rules f the AAPMBF.
The preamble to the Rule changes is deceitful in that it does not tell the complete story. It claims that the Fund is required to obtain an Australian Financial Services Licence in order to comply with the Corporations Act 2001. This is not entirely true. Members will recall that the then Trustees of the AAPMBF, in 2007, proposed that the appointment of the AFAP as Trustee, would satisfy our obligations under the Act. We voted to approve that, but the Board of the AAPMBF failed to fully implement our directions. They then had a change of heart, (for reasons that that have been proved to be false), leading to the sham dismissal of the AFAP last year. Interestingly under the proposed rule changes, the actions of the AAPMBF Board in dismissing the Trustee last year, would no longer be valid. There are no provisions in the new rules for the dismissal of the Trustee. The Trustee can be forced to resign only by direct requisition and ballot by the membership of AAPMBF. As there is no AAPMBF board or Trustees only Directors of Austair, they will hardly be likely to dismiss themselves even if the rules allowed.
The original draft of these rule changes sought to eliminate the requirement for a Trustee to be a member of the AFAP and also eliminated the ability of an Annual General Meeting or Special Meeting to remove a Trustee from office. Fortunately there are some of our Trustees who found the concept repugnant, and secured removal of those provisions. But now these changes have simply removed the position of the current Trustees.
Rather disingenuously, the Chairman in his accompanying letter suggests that an important outcome of an affirmative ballot will be that the fund will have the ability to take on new members. What is not said is that the current inability to take members (since August 2009) is a direct result of the then Board’s action to dismiss the AFAP as Trustee, before they had adequately prepared the Fund for a transition of Trusteeship.
The inadequacies of this proposal are, in my view, the direct result of knee jerk reactions by a section of our current administration hell bent on a secondary agenda. The proposals are so obviously flawed it is difficult to accept that they are the product of any legal professional.
The moves we are seeing here are , in my opinion, the precursors to the sale of the Fund to commercial interests. We should all be mindful of the machinations of the QANTAS board in the unsuccessful sale of that company to Allco.
There are other options which have not been put to us. We are being told this is the only way. It is not. Acquisition and retention of the FSL is expensive and unnecessary, but will facilitate the sale of the organisation further down the track.
I intend to vote NO.
I urge you to do the same.
Paul Makin
Former Chairman of Trustees AAPMBF
Last edited by paul makin; 7th Apr 2010 at 00:17.