Secret Ballots - What, When & Why?
Three of the five Body Corporate and Community Management Regulations in Queensland contain secret ballot provisions, yet a secret ballot is not defined in the Act or Modules.
A secret ballot is essentially a ballot conducted at a general meeting of the body corporate in a manner that ensures the secrecy of each lot owner's vote. Its purpose is to allow lot owner's to vote freely without fear or reprisal.
If the Act or Regulation Module requires a motion to be by secret ballot, a Returning Officer must be appointed.
Whilst a ballot is likely to be for a motion, from time to time an election is conducted by secret ballot and whilst there is no legal requirement for a Returning Officer, a Returning Officer may be recommended and engaged for the scheme.
A Secret Ballot is necessary if;
The Act or Module requires a motion to be conducted by secret ballot
The committee has recommended that the motion be conducted by secret ballot
The body corporate has by way of ordinary resolution required in a prior meeting that a motion be decided by secret ballot.
Primarily the type of motion conducted by secret ballot is a variation to a caretaking and / letting agreement, or their termination. Not all caretaker variations require a secret ballot. A motion to increase the caretaker remuneration does not require a secret ballot.
Typically, a motion recommended by the committee to be conducted by secret ballot is emotive and contentious. An example would be a motion to change the colour of the building.
Who is a Returning Officer?
An independent person appointed by the committee or body corporate whose function is to receive, organise, admit and count the votes and generally oversee the voting of a secret ballot.
A Returning Officer cannot be a lot owner in the scheme, a person engaged as a body corporate manager or a service contractor / authorised letting agent (or their associates). By virtue of their association with the scheme, they do not satisfy the independence test as each have an interest in the outcome of the vote.
A Returning Officer should have a thorough working knowedge of the legislation and relevant adjudications decided by the Office of the Commissioner for Body Corporate and Community Management.
What does a Returning Officer do?
Receive secret ballot voting papers and electronic votes.
Decide questions about eligibility to vote and voting entitlements
Deciding whether a vote is valid
Counting of votes
Reasons why a Returning Officer may disqualify a vote
If a lot owner owes a body corporate debt (unless the motion to be voted upon requires a resolution without dissent).
Lack of evidence of representation (ie. company nominee, power of attorney).
If a mortgagee is in possession of a lot and has claimed the right to vote by way of notice to the body corporate.
The Returning Officer is unable to ascertain voting intention.
Vote is received after the count.
Paper vote is not given directly by the voter to the Returning Officer, ie no intermediary allowed.
Lot owner/voter attempts to vote using a different lot owners voting link.
Proxies are not allowed in a secret ballot.
The Secret Ballot Process
The legislation is prescriptive!
The secret ballot process must be in accordance with the legislation so that the secrecy of each vote can be maintained. This helps ensure the outcome is accepted with confidence by the community.
The legislation details the documents required for a secret ballot right up to and including the secret voting paper and envelopes.
The motion must be written in the prescribed format and it's accompanying documents must be included in the agenda.
In addition, a voter wishing to cast a secret vote must do so in the manner detailed in the legislation. Failure to do so, may invalidate the vote.
For example, if the voter does not complete their name, the Returning Officer will not be able to identify who has voted and will invalidate the vote.
Whist the secret ballot process must be in accordance with the legislation, it is up to the voter whether they wish to avail themselves to the secret ballot process. A lot owner may vote openly from the floor of the meeting and in doing so waiver their right to secrecy.
A voter cannot appoint a proxy to vote on a secret ballot on their behalf.
Paper Votes – Requirements for a valid vote
Cast your vote by clearly placing a mark in the appropriate place on the secret voting paper
Place the secret voting paper in the secret voting paper envelope supplied by the Secretary and seal it
If a separate particualrs envelope is supplied by the Secretary, place the sealed secret voting paper envelope in the particulars envelope and seal it.
Complete the separate particulars envelope or particualrs tab. Ensure it is signed and dated and the following information is completed.
The lot number for which the vote is exercised
The name of the owner of the lot
The name of the person having the right to vote; and
The basis for the voter's right to vote; ie. lot owner, company nominee etc.
Ensure the envelope is received by the Returning Officer prior to the count.
A voter who has submitted a vote may amend or withdraw their secret vote prior to the count.
Electronic Voting requirements
The body corporate must have passed a resolution at general meeting permitting voters to submit an electronic vote.
The electronic voting software must comply with the legislative provisions of the BCCM Act and Modules. Specifically for a secret vote, the platform must protect the identity of voters. The secret vote must be in a stand alone system accessed solely by the Returning Officer.
The platform can not allow the body corporate manager access to how a voter has voted. Indeed, the Returning Officer also does not know how a person has voted.
If the voter has a registered email address on the body corporate roll and has elected to participate in electronic voting, they will receive an electronic voting link which must be used within the time frame specified by the strata manager.
Do not forward your voting link to another lot owner. The voting link is specific to your lot.
A voter simply completes their vote, signs the electronic form of voting paper and submits the vote to enable the vote to be received by the Returning Officer.
The system will allow the lot owner to change their vote prior to the meeting, should they wish to do so.
A email is not an accepted electronic form of secret voting, but may be used by a lot owner submitting an open vote.