Body corporate committees have the day-to-day responsibility of ensuring the body corporate’s affairs run smoothly.
Depending on the scope of those affairs, the responsibility of a committee member, including being responsible for a significant amount of property and funds, might be considerable and there might be, as a result, a bit of competition for committee membership within the body corporate.
It is therefore no surprise that queries about eligibility for committee membership are commonly received by my office, as both information enquiries and as part of a dispute resolution application.
To begin with, a bit of background. Committee eligibility is defined in the applicable regulation modules. As a general rule, a person is automatically eligible if they are a lot owner. Despite that, they become ineligible if they are an associate of:
- a body corporate manager;
- service contractor;
- letting agent; or
- caretaking service contractor.
Now the question arises quite often: what is an associate?
The answer to this is provided in section 309 of the Body Corporate and Community Management Act 1997 (the BCCM Act).
That said, in March 2016 this section was amended as a result of the Relationships (Civil Partnerships) and Other Acts Amendment Act 2015. Specifically, section 309(2)(a) of the BCCM Act was amended from ‘registered relationship’ to ‘civil relationship’. This section (as amended) states:
(1) For this Act, a person is associated with someone else if—
(a) a relationship of a type to which this section applies exists between them; or
(b) a series of relationships of a type to which this section applies can be traced between them through another person or other persons.
(2) This section applies to relationships of the following types—
(a) marriage, de facto relationship or civil partnership;
(b) the relationship of ascendant and descendant (including the relationship of parent and child) or the relationship of persons who have a parent or grandparent in common;
(d) the relationship of employer and employee;
(e) a fiduciary relationship;
(f) the relationship of persons, one of whom is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the other;
(g) the relationship of a corporation and executive officer of the corporation;
(h) the relationship of a corporation and a person who is in a position to control or substantially influence the corporation’s conduct.
(3) Despite subsection (2)(e) and (f), the owner of a lot in a community titles scheme and a letting agent for the scheme are not associated merely because of their relationship as owner and letting agent.
(4) In subsection (2)—
executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.
So when trying to determine if a person is an ‘associate’ of a body corporate manager, service contractor, letting agent or a caretaking service contractor, section 309 of the BCCM Act should be reviewed initially. This is the primary consideration as to whether or not a person is an associate and therefore ineligible to be nominated or elected to a voting member’s position on the committee.
Obviously, there are other eligibility requirements that need to be met. One of these requirements is whether the nominee proposed by the lot owner is considered a member of the individual’s family.
While the regulations provide for the definition of family to include an individual’s spouse, the regulations do not give a definition of ‘spouse’.
The Acts Interpretation Act 1954 (the Acts Interpretation Act) provides this definition, which has itself been amended as a result of Relationships (Civil Partnerships) and Other Acts Amendment Act 2015.
Previous to these amendments, adjudicators had determined the question of whether a spouse included a person in a same-sex relationship under the definition of ‘spouse’ in the Acts Interpretation Act. Following the amendments in March 2016, same sex relationships are now captured under the definition of civil relationship and/or de facto relationship under section 309 of the BCCM Act.
One recent adjudicator’s decision, which addressed both eligibility requirements relating to associates and same sex relationships is available at: Q1  QBCCMCmr 391 (20 August 2015).
Perhaps the key consideration in this discussion is that considerations around eligibility generally can be quite complex. It may therefore be prudent to seek legal advice on the issue of committee eligibility.