Secret ballots for committee elections: how do they work?

AccomNews Wednesday, April 20, 2016

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In any context, the concepts of a ‘ballot’ and ‘secrecy’ on their own prompt a range of strong reactions and opinions.

Combine the two and you have a scenario in which there is potential for uncertainty and confusion.

With that in mind, this article is intended to clear up some of those unknowns around secret ballots for committee elections. Recent enquiries and questions posed to my office have highlighted a misunderstanding regarding the conduct of a secret ballot. In some cases, I have found that body corporate managers, committees and onsite managers are over-thinking the process making it more complex than necessary.

Let’s start with the basics. Owners must return their nominations to the secretary before the end of financial year. Owners can nominate for as many positions as they want. After this date has passed, the ballot papers are prepared. These must be prepared in accordance with the provisions in the regulation module that applies to the scheme. One common error we hear about is where schemes just assume something applies without checking the specifics of the regulations. This can result in an election being conducted procedurally, incorrectly and may lead to a dispute application being lodged with the Office of the Commissioner for Body Corporate and Community Management (BCCM).

I will address some misunderstandings around elections, mainly those about when elections should be conducted by secret ballot and when they shouldn’t.

The starting point is to determine which regulation module applies to your scheme.

Community titles schemes regulated by the Body Corporate and Community Management (Standard Module) Regulation 2008 (the standard module) must conduct elections by secret ballot unless the body corporate has previously resolved by ordinary resolution to conduct them by open ballot. The standard module outlines detailed processes on how the secret ballot or open ballot elections are conducted.

Schemes regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the accommodation module) are the opposite, where elections must be conducted by open ballot unless the body corporate resolves otherwise. Unlike the standard module, the accommodation module does not outline detailed processes for conducting elections. Other than the limited processes it gives for ballots, it requires the body corporate to pass a motion by ordinary resolution dictating how the ballots for election of the executive and ordinary members are to be conducted.

Neither the standard module nor the accommodation module makes provision for conducting secret ballot for elections electronically. This is regularly confused with the ability for the body corporate to resolve, by ordinary resolution, to accept votes electronically for secret ballot motions.

While not the most common regulation module, it is relevant to point out for comparative purposes that schemes regulated by the Body Corporate and Community Management (Commercial Module) Regulation 2008 (the commercial module) choose how to conduct their elections by passing a special resolution outlining the process. The commercial module will not dictate this process for you.

As the commercial module requires each scheme to resolve its election processes, there is also no mention of voting electronically for elections.

My office has documented these election processes on our website for each regulation module. These pages can be printed individually to ensure everyone is familiar with the specific processes that apply to their scheme. They are located on www.qld.gov.au/bodycorporate under the heading Forming a Body Corporate Committee.

One crucial element all must be familiar with is that nobody else can submit your ballot paper or voting paper on your behalf. Each owner must follow the processes outlined on the ballot paper and individually return it to the named receiver; whether the body corporate secretary or the body corporate manager. Past adjudicators’ decisions have, in most cases, declared votes to be invalid when another person has submitted the paper on behalf of a lot owner without being their representative or other authorised person. By ‘representative or other authorised person’, this means, for example, a power of attorney.