SSAA Newcastle Branch has obtained the opinion of Senior Counsel on the constitutionality of SSAA (NSW) donating $250,000 to the Shooters Party election fund without the approval of the members in a special resolution.
The opinion finds that the donation was unconstitutional as previously stated here, contrary to the opinion of a solicitor engaged by SSAA(NSW) who was subsequently nominated as a candidate for the Shooters Party in the State election.
Senior Counsel opinion carries considerable weight and is regarded as more likely to reflect the views of a court than a solicitor.
The opinion obtained by Newcastle Branch reads as follows:
RE: SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (NSW) INCORPORATED
1. My instructing solicitors act on behalf of the Sporting Shooters Association of Australia (NSW) Newcastle Branch Incorporation (the “Newcastle Branch”) an association incorporated under the Association Incorporations Act 1984 (NSW) (the “Newcastle Branch” and the “Act” respectively).
2. The Newcastle Branch is a member of the Sporting Shooters Association of Australia (NSW) Incorporated under the Act (the “New South Wales Branch”). My advice has been sought concerning whether the payment of funds by the New South Wales Branch to the “Shooters Party” (which I assume is a political party registered under Party 4A of the Parliamentary Electorates and Elections Act 1912 (NSW)) was undertaken in accordance with, or contrary to, its rules.
3. I am instructed that some time in the latter part of 2006 the “Board of Directors” of the New South Wales Branch resolved to donate the sum of $250,000 to the Shooters Party. The decision was not placed before the members for their approval and, in particular, no special resolution of the members was obtained to approve the payment. Some time prior to 19 October 2006 the monies were paid to the Shooters Party.
4. I have been briefed with what I am instructed are the rules of the New South Wales Branch (the “Rules”) and I am assuming that they replace the model rules in force under the Act (see sub-section 19(2)(a) of the Act). Clause 3 sets out the “Aims, Objects and Purposes” of the New South Wales Branch. Clause 3.11 specifically identifies as one of the “Aims, Objects and Purposes” the opposing of “all aspects of firearms or firearms use legislation”.
5. Clause 4 of the Rules is headed “Powers“. It relevantly provides as follows:
“The powers of the Association are:-
4.7 The investment of any moneys of the Association not immediately required for any of its aims, objects or purposes in such manner as the Board may from time to time determine.
4.8 Except as specifically permitted by a special resolution of the Association, the making of gifts, subscriptions or donations to any worthy cause, unless the funds are raised specifically for that purpose, are limited to an amount in total of any one year $500.00.
4.9 The establishment or participation in insurance or superannuation scheme/s to benefit employees or past employees.
4.10 To do any other lawful things that may be deemed necessary or convenient in the pursuance of the aims, objects and purposes of the Association.”
Clause 6.3 also provides:
“6.3.1 The Board shall be subject to the relevant legislation, these rules and any resolution passed by the Association in general meeting:
a) shall control and manage the affairs of the Association;
b) may exercise all such functions that are not required by these rules to be exercised by general meeting of member branches of the Association;
c) has the power to perform all such acts and do all such things as appear to the Board to be necessary or desirable for the proper management of the affairs of the Association.
6. Clause 7.10.1 of the Rules defines “special resolution”. For present purposes it can be treated as a resolution of not less than 3/4 of the members voting in person or by proxy at a meeting of which not less than 21 days written notice has been provided (see also sub-section 5(1)(a) of the Act).
7. In my view, Rule 4.8 clearly restricts the making of “gifts, subscriptions or donations” to any external body which is judged to be a “worthy cause” unless the funds are raised specifically for that purpose or are approved by a special resolution of the members. The clause is not meant to cover payments for services rendered or goods supplied but does restricte donations to external bodies such as political parties to assist them with an election. The restriction is not overcome by clause 4.10 because it only enables the body to do “any other” lawful thing; i.e. something that is not governed by clause 4.8. Further, clause 6.3.1 of the Rules does not empower the Board to make any such payment as that clause is subject to the Rules including rule 4.8.
8. I have been instructed that neither the New South Wales Branch nor its member bodies engaged in specific fund raising for the Shooters Party prior to providing the $250,000. Further, the material available to me suggests that the payment was a donation to the Shooters Party and not some form of payment for services rendered. In my view it follows that the payment was not authorised by the Rules.
9. I have been briefed with correspondence from the President of the New South Wales Branch suggesting that the Shooters Party did not answer the definition of “worthy cause” and clause 4.8 was only intended to apply to a charitable or similar body such as the Red Cross, Cancer Council, Lions Club etc. In my view this is not a correct interpretation of the Clause 4.8. I do not consider that the phrase “worthy cause” add any further limitation on the context of “gifts, subscriptions or donations”. It merely highlights that the clause is concerned with donations. What is “worthy” is a matter to be judged by the New South Wales Branch and, in particular, by its members in considering a special resolution. Clause 4.8 serves the important purpose of securing member control over the payments of funds (other than for services or for other value). In my view that important purpose would be defeated by interpreting the clause in the manner contended for by the President of the New South Wales Branch.
10. The correspondence from the President also contends that the payment was not covered by clause 4.8 because the payment to the Shooters Party was not an “unconditional donation” but was only to be made “for the express purpose of the party’s campaign”. This makes no difference. A conditional donation is still a donation. The monies were not paid to the Shooters party for the supply of services but for the Shooters Party to pursue its own interests in seeking the election of its candidates.
11. Accordingly, I consider that the payment of the funds by the New South Wales BAssociation to the Shooters Party was not undertaken in accordance with the Rules and was thereby contrary to sub-section 18(1) of the Act.
12. For the sake of completeness I confirm that I am not addressing the consequences of the breach as that would require further inquiry and a consideration of sub-section 18(5) of the Act.
I so advise.
ROBERT BEECH-JONES SC
St James Hall Chambers
20 March 2007