Rules about decision-making
PBC constitutions include information about the PBC’s decision making processes. A PBC's constitution will outline how decisions are to be made in meetings and set out the procedures for dealing with internal disputes and complaints.
Making decisions in directors’ meetings
Under section 212.20 of the CATSI Act there must be a majority quorum for director's meetings. This is an exemptible set law and not a replaceable rule. If a PBC believes that having a majority quorum is not suitable for their circumstances they can apply to the Registrar of ORIC for an exemption to the rule.
Most PBCs keep a majority quorum for director's meetings.
Section 212.25 of the CATSI Act is a replaceable rule requiring resolutions at directors meetings to be passed by the majority of directors.
Whilst most constitutions included a rule that decisions in director's meetings are to be made by a majority show of hands, some constitutions specify that decisions must be made in a different way. These included making decisions by consensus, considering the role of family and descent groups in decision making and using traditional methods of decision making and Elders Councils.
Resolutions in directors’ meetings are to be made by majority vote, if there is an even vote board must consult with the Council of Elders. If after considering the Council of Elders’ views, the Directors’ votes remain equal the question shall be decided by the Members at the next General Meeting.
The CATSI Act s.212.25 is a replaceable rule which states that during directors’ meetings the chairperson has an additional casting vote in addition to any vote they have as a member. Most PBC constitutions include this replaceable rule.
Making decisions in general meetings
The CATSI Act s.201.70 details a quorum requirement for general meetings which is determined by the number of members of the corporation. This is a replaceable rule that PBCs can alter to better suit their needs and circumstances.
ORIC’s ‘The Rulebook Info-kit’ and ‘A guide to writing good governance rules for prescribed bodies corporate and registered native title bodies corporate’ offer an alternative quorum suggestion for PBCs.
Research conducted by AIATSIS found that a high percentage of PBCs nationally changed the default quorum for general meetings. These alternate quorum were either defined as a percentage of members or a specific number of members. Quorum was usually dependent on the number of members in the organisation.
The constitution report also showed that some PBC constitutions had an additional quorum requirement related to a family, descent or Elder group requirement. These rules included specifications such as requiring at least one member from each family or descent group or a certain number of Elder members to be present for general meetings to go ahead.
The CATSI Act (s201.125) includes a replaceable rule which states that during general meetings the chairperson has a casting vote in addition to any vote they may have as a member. As of the beginning of 2017 the majority of PBC constitutions permitted the chairperson to have a casting vote in general meetings.
The process for voting in general meetings is a replaceable rule within the CATSI Act. PBCs can choose to adopt this rule as it is or to change this rule to better suit their needs.
How voting is carried out and replaceable rules
Section 201.125 of the CATSI Act outlines how voting is carried out and replaceable rules. For example
A resolution put to the vote at a general meeting must be decided on a show of hands unless a poll is demanded.
Before a vote is taken the chair must inform the meeting whether any proxy votes have been received and how the proxy votes are to be cast.
On a show of hands, a declaration by the chair is conclusive evidence of the result, provided that the declaration reflects the show of hands and the votes of the proxies received. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.
Note: Even though the chair's declaration is conclusive of the voting results, the members present may demand a poll (see section 201-130).
Research conducted by AIATSIS found that that majority of PBCs adopted the default rule on voting in general meetings and make resolutions by a majority show of hands unless a poll is requested.
The second most popular procedure for voting in general meetings was found to be to make decisions by consensus and if consensus is not possible after reasonable effort has been made, the resolution can then be put to a majority vote. However, most constitutions that state that decisions are to be made by consensus do not specify what is meant by consensus.
Some PBC constitutions have additional requirements for decision making processes such as specifying that decisions are to be made in accordance with traditional laws and custom, enabling postal voting, requiring a 75% majority and referring tied votes to an Elders group.
Other alternative decision making rules in PBC constitutions include processes that pay more attention to the family, descent, language and/or lineage groups within the PBC membership group, with smaller groups meeting separately to discuss resolutions before reporting back to the larger group.
Decision making rule - PKKP Aboriginal Corporation RNTBC
Decision making for the PKKP PBC follows a process by which information is presented to a group as a whole before members split into their language groups to discuss the proposed resolution. Each language group has one vote and if the resolution has an equal amount of votes on each side, it is taken not to have passed.
A few PBCs have developed decision-making flowcharts to visually display the process by which decisions are made.
The CATSI Act has a section to allow proxy voting in PBCs. A proxy is someone who attends and votes on behalf of another corporation member at a general meeting. The proxy rule is a replaceable rule within the CATSI Act and PBCs can choose whether or not to include this rule within their constitution. As of January 2017, 78% of PBC constitutions included the proxy rule.