By-Laws – ECAA

ECAA By-Laws

INTRODUCTION

Pursuant to sub-clause 53(1) of the Constitution, the following By-Laws are made by the Board of Directors for the maintenance of sound practice and the promotion of the interests of the Association and the smooth operation of the Constitution.

The following By-Laws follow the structure of the Constitution.

CHAPTER 1: DEFINITIONS

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CHAPTER 2: NAME, REGISTERED OFFICE AND OBJECTS OF THE ASSOCIATION

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CHAPTER 3: MEMBERS

3.1 MEMBERS

Admission
3.1.1 The Association shall enter into the Register of Members applicants who shall:

(a) Apply in writing on the prescribed form and pay the prescribed fee for admission;

(b) In the case of the applicant being a body corporate, provide documentary evidence of the applicant being:
(i) an Australian company. The evidence required as proof of such incorporation is:
a. a certified copy of the certificate of incorporation; and
b. the applicant’s Australian Business Number.
(ii) in the business of being an education consultant and has at least two years experience as an education consultant. The evidence required as proof of such relevant experience is:
a. certified copies of the letters of appointment as an agent (for the purpose of recruiting international students) of at least six CRICOS listed Australian education providers approved by the Board of Directors; and
b. the applicant state in the application form that they have at least two years experience as an education consultant
(iii) fit and proper to be a member of the Association. Documentary evidence required of this is:
a. a reference from a member of the Association stating that the applicant is to the best of their knowledge, fit and proper to be a member of the Association, that they are aware that the applicant has at least two years experience as an education consultant and that they have known the principal/s of the body corporate for at least 12 months; and
b. a reference from an Australian education provider approved by the Board of Directors that the applicant is to the best of their knowledge, fit a proper to be a member of the Association and that they have known the principal/s of the body corporate for at least 12 months.
(c) In the case of the applicant being an unincorporated business (trust, partnership or sole trader), the applicant must be a natural person who is the principal of that business. The reason for this is that the member must have a capacity at law, and unincorporated businesses do not have a capacity at law. If the applicant in such a situation has more than one principal, the business must only nominate one principal as the member. In such a situation, the applicant must provide the following documentary evidence with their application:
(i) The Australian Business Number of the business the applicant is principal of.
(ii) Proof of identity of the principal, including certified copies of drivers’ licence, passport etc
(iii) that the business the applicant is principal of, is in the business of being an education consultant and has at least two years experience as an education consultant. The evidence required as proof of such relevant experience is:
a. certified copies of the letters of appointment as an agent (for the purpose of recruiting international students) of at least six CRICOS listed Australian education providers approved by the Board of Directors; and
b. the applicant state in the application form that they have at least two years experience as an education consultant
(iii) that the applicant is a fit and proper person to be a member of the Association. Documentary evidence required of this is:
b. a reference from a member of the Association stating that the applicant is to the best of their knowledge, the applicant is a fit and proper person to be a member of the Association, that they are aware that the applicant has at least two years experience as an education consultant and that they have known the applicant for at least 12 months; and
c. a reference from an Australian education provider approved by the Board of Directors that the applicant is to the best of their knowledge, fit a proper to be a member of the Association and that they have known the applicant for at least 12 months.

(d) Provide evidence that the applicant will be bound by the provisions of the Constitution of the Association, and of the By-laws and Regulations, including any professional and ethical requirements that the Board may create by way of regulation then in force or which may thereafter from time to time be in force. Such evidence is the signing of the application form.

(e) All applicants must comply with such other conditions as the Board of Directors may prescribe either generally or in a particular case. Examples of other conditions the Board of Directors may require of applicants, either generally of in a particular case include a police check
3.1.2 In the case of an applicant who is a body corporate, the applicant is to identify who is the principal/s of the applicant. This could be the owner/s or the chief executive officer of the business.

3.1.3 The Board of Directors may in its discretion and without being required to assign any reason, refuse to accept any application for admission to membership of the Association.

Founding members
3.1.4 The Association shall enter into the Register of Members, the Founding Members of the Association once the Founding Member provides evidence that the Founding Member will be bound by the provisions of the Constitution of the Association, and of the By-laws and Regulations, including any professional and ethical requirements that the Board may create by way of regulation then in force or which may thereafter from time to time be in force.

3.1.5 The Founding Members of the Association are:
(a)
(b)

Provisional members
3.1.6 Applicants who do not meet by-laws 3.1.1(b)(ii) and 3.1.1(c)(iii) may be admitted as provisional members until they meet the requirements of those by-laws. All other requirements for admission to membership in by-laws 3.1.1, 3.1.2 and 3.1.3 apply.

3.1.7 Provisional members are not considered a member for the purpose of the Constitution and therefore their name will not be entered into the Register of Members, however as a condition of being admitted as a provisional member, the applicant must agree to be subject to the Investigation and Disciplinary Procedures Chapter of the Constitution and the professional and ethical requirements the Board of Directors may impose.

Fees and subscriptions – Admission
3.1.8 Every applicant for membership and is entitled to be admitted shall, before their name is entered in the Register of Members and before they become entitled to the privileges of membership, pay the full admission fee, first annual subscription and any other fees due, subject to By-Law 3.1.9. The Board of Directors may vary or waive any fee or subscription.

3.1.9 All persons being admitted to membership after July each year shall pay a pro rata amount calculated on a monthly basis commencing from the month of lodgement of the application.

Fees and Subscriptions –Provisional member
3.1.10 Every applicant for provisional membership and is entitled to be admitted shall, before their admission, pay the full admission fee, first annual subscription and any other fees due, subject to By-Law 3.1.11. The Board of Directors may vary or waive any fee or subscription.

3.1.11 All persons being admitted to provisional membership after July each year shall pay a pro rata amount calculated on a monthly basis commencing from the month of lodgement of the application.

Fees and Subscription – advancement from provisional member to Member
3.1.12 Every applicant for advancement from provisional membership to member shall, before their name is entered in the Register of Members and before they become entitled to the privileges of membership, pay the advancement fee due. The Board of Directors may vary or waive any fee or subscription.

Member status
3.1.13 The Board of Directors may create a separate member status. The Board of Directors may for that member status require applicants for that member status to meet additional requirements above and beyond the existing requirements for membership.

3.1.14 The Board of Directors may set an additional application fee and annual subscription fee for the different member status.

3.1.15 Different member status does not entitle members of that status to additional privileges under the Constitution.

3.2 SPECIAL CASES

3.2.1 The Board of Directors may by resolution passed by a majority of not less than two-thirds of the Board of Directors, present and voting dispense with all or any of the requirements of the By-laws regarding admission or a change of status and admit any person to the Association and cause their name to be entered into the Register of Members in such status as it thinks fit or grant a change of status to any member:

(a) if that person or member has extensive experience in the education sector; or

(b) if that person or member has rendered valuable service in advancing the interests of the Association; or

3.3.1 For applicants for re-instatement whose membership has lapsed for five years or less, every applicant shall:

(a) apply in writing and pay the prescribed fees

(b) comply with such other conditions as the Board of Directors may prescribe either generally or in a particular case.

3.4.2 Applications for re-instatement following a membership lapse of more than five years are required to reapply for admission under by-laws 3.1.1 to 3.1.12.

3.4.3 All applications for re-instatement following forfeiture of membership for disciplinary reasons shall be referred to the Board of Directors for consideration.

CHAPTER 4: GENERAL MEETINGS OF THE ASSOCIATION

4.1 VOTING AT GENERAL MEETINGS

4.1.1 The Board of Directors shall appoint a Returning Officer of the Association.

4.2 PROXIES

4.2.1 Pursuant to Clause 45 of the Constitution, every instrument of proxy shall be on the prescribed form, provided that where notice has been given of a General Meeting at which it is intended to propose a resolution as a special resolution, the opportunity shall be offered members of voting for or against such resolution by the use of the following words on the form:

This form is to be used *in favour of the resolution
against

* Strike out whichever is not desired. (Unless otherwise instructed, the proxy may vote as they think fit.)

CHAPTER 5: BOARD OF DIRECTORS

5.1 ELECTION OF DIRECTORS

5.1.1 In accordance with Clause 56 of the Constitution, the conduct of elections of directors to the Board of Directors of the Association is prescribed in the following By-Laws.

Term of Directors – Transitional Arrangements – Purpose
5.1.2 The purpose of the transitional measures is to ensure:
• that a constant number of directors retire and are elected each year; and
• that it is always known without the need for determination, which Directors are up for election each year.

5.1.3 At the completion of these transitional terms, all subsequent terms shall be as specified in Clause 58 of the Constitution.

Term of Directors – Transitional Measures – Determining the allocation of transitional terms amongst directors
5.1.4 For the purpose of Clause 60 of the Constitution, Directors are to be allocated the one or two year term by following the below steps:
Step 1: For members nominating for election as a Director by the first day of October 2010, they must also nominate their preferred transitional term (one or two years).

Step 2: If the number of nominations for a particular transitional term is equal to or less than the number available in that transitional term and the number of nominations for election as a director in total is equal to or less than the total number of positions available for election, then the those nominations are to be declared as being successful and the directors are allocated to their preferred transitional term (1 or 2 year term). If this is the case, no further steps are required.

Step 3: If the number of nominations for a particular transitional term is greater than the number available in that transitional term and the number of nominations received in total does not exceed the total number of positions available for election, then those nominations shall be declared successful. Save on the agreement of the directors as to how the transitional terms are to be allocated, the Returning Officer shall determine the allocation of the transitional terms by drawing lots. If this is the case, no further steps are required.

The successful directors at the drawing of lots will become the director for their preferred transitional term. The Returning Officer shall then draw lots amongst the remaining directors to determine who will become directors for their least preferred transitional term, and so on.

Step 4: Where the number of members nominated for election as director is greater than the total number of positions available for election, then an election is to be held by postal ballot according the elections procedures in this By-Law.

Step 5: After the results of the election are declared by the Returning Officer, the candidate with the highest number of votes shall be allocated their preferred transitional term. The candidate with the second highest number of votes shall do the same and so on in that hierarchy until all the all candidates that have been elected are allocated a transitional term.

Where there is an equal number of votes, the Returning Officer shall draw lots to determine who will be given what transitional term.

Where the number of transitional terms have already been allocated, then the candidate will be allocated their least preferred transitional term.
After the election of directors and the allocation of transitional terms, the Returning Officer is to declare the results of the election and too which transitional term the successful candidates have been allocated.

5.1.5 After the completion of the process in By-Law 5.1.4, the new directors will take office for the appropriate transitional term from the date of election.

Nomination for director
5.1.6 No member shall be elected a Director of the Association unless they have been nominated for such office. Every nomination shall be signed by two members and countersigned by the candidate and shall be lodged with the Association not later than the end of the preceding financial year (the exception being in 2010, when nominations can be received on the date the Constitution is adopted). Retiring directors can re-nominate for election.

Nominations equal to or less than number of positions available
5.1.7 If the number of nominations received is equal to or less than the number of vacancies to be filled at any election the President shall declare the candidates nominated duly elected.

Nominations exceed number of positions available
5.1.8 If the number of nominations received is more than the number of vacancies to be filled at any election the election shall be determined by postal ballot which shall be taken by means of voting papers only (the exception being in 2010, when voting can be done by a show of hands at the meeting on the date the Constitution is adopted).

Voting procedures – Appointment of a Returning Officer
5.1.9 The Board of Directors shall appoint a Returning Officer who shall not be a director of the Association, a candidate for election or a person who nominated a candidate, for election of directors.

Voting Procedures – Appointment of a Scrutineer
5.1.10 The Board of Directors at its meeting immediately preceding the date on which the voting papers are returnable shall appoint a Scrutineer or Scrutineers. Any scrutineer shall not be a director of the Association or a candidate for election as a director.

5.1.11 The Scrutineer or Scrutineers may be paid such costs as may be determined from time to time by the Board of Directors.

Voting Procedures – Voting Papers
5.1.12 Where there is to be an election of a director by the members pursuant to by-law 5.1.8, the Association shall post to each member entitled to vote, a voting paper and an envelope with the words “Voting Paper” printed thereon at least fourteen days prior to the date of the election (which shall be between 1 July and 30 September)..
5.1.13 Every voting paper shall contain the names of the candidates for election. The order in which names shall appear of the voting paper will be determined by the Returning Officer drawing lots.

Voting Procedures – Statement of Personal Particulars
5.1.14 A statement of the personal particulars of each candidate shall be posted to members with the voting paper referred to in By-law 5.1.12. For this purpose, “personal particulars” of a candidate shall be limited to the candidate’s full name and residential address, any academic qualifications, any civil and military honours and awards, years of membership of the Association, the name of their employer and the position held, and particulars of any office previously or currently held within the Association including any committee or sub-committee. The “personal particulars” statement shall be prepared by the candidate and approved by the Board of Directors. The responsibility for ensuring that the statement does not unduly favour any one or more candidates shall rest with the Board of Directors. In the event of any difference of opinion between the Board of Directors and the candidate, the decision of the Board of Directors shall be final.

In addition to the “personal particulars” above candidates may write a resume of their activities and interests not exceeding 50 words to be included with the information provided to members.

The resume must not contain statements, which in the opinion of Board of Directors, are in any way derogatory to the Association or any member of the Association or any other person or organisation.

Voting Procedures – Voting
5.1.15 The method of voting shall be by placing a tick in the box opposite the name or names of those candidates for whom the member wished to vote. The number of ticks shall correspond with the number of positions available for election.

5.1.16 Every member chooses to complete the voting paper, shall place their voting paper with their votes marked thereon in the envelope marked “Voting Paper”, sign the slip attached to such envelope and write their name, address and membership number in the place indicated on the slip. All votes shall be received by the Returning Officer no later than two business days prior to the time fixed for the Annual General Meeting (where the results of the election will be announced).

Voting Procedures – Altering a Vote
5.1.17 If any member desires to alter their voting paper prior to scrutineering (which shall occur in the two business days prior to the Annual General Meeting, the Returning Officer may issue a fresh voting paper and shall at the same time destroy the voting paper first issued. Any member who may have lost their voting paper shall give the Returning Officer a written declaration to that effect and may have a fresh voting paper issued to them.

Voting Procedures – Counting of votes
5.1.18 Between the close of voting, being the close of business two days prior to the Annual General Meeting and the beginning of the Annual General Meeting, the Returning Officer shall in the presence of the scrutineer/s shall determine the validity of the votes cast and count those votes validly cast.

5.1.19 The Returning Officer and Scrutineers shall report in writing the result of the count of votes and deliver the report to the Chairman of the Annual General Meeting.

Voting Procedures – Determining if a member has voted
5.1.20 When the Returning Officer is satisfied that the signature on the slip attached to the envelope containing a voting paper is that of a member entitled to vote, the Returning Officer shall in the presence of the Scrutineers tear off the slip and record such a member as having voted.

Voting Procedures – determining the validity of a ballot paper
5.1.21 Every voting paper which shows more or less votes than the exact number of vacancies to be filled or which does not comply with the requirements of these By-laws shall be invalid.

5.1.22 If in the report of the Scrutineers, the Scrutineers are of the opinion that any voting paper is substantially defective, the Returning Officer shall declare that such a voting paper shall not be used in the election.

Voting Procedures – Destruction of Voting Papers
5.1.23 As soon as the voting papers for any election have been examined and the results of the vote ascertained, all voting papers, whether valid or not, shall be sealed in an envelope and retained by the Returning Officer for three months after the announcement of the results when they shall be destroyed by the Returning Officer.

Voting Procedures – determining the successful candidate/s
5.1.24 The candidates who have received the greatest number of votes shall be elected to the extent of the vacancies to be filled. For example, if there are three vacancies, then the candidates with the three highest total number of votes shall be elected.

Voting Procedures – determining the successful candidate – tied vote
5.1.25 If two or more candidates have received an equal number of votes then the Chairman of the Annual General Meeting shall by lot elect one of them.

Voting Procedures – Report of the Returning Officer and Scrutineer
5.1.26 The Chairman shall sign the report by the Returning Officer and Scrutineers of the result of the election. This report shall be noted in the minutes of the Annual General Meeting and shall be conclusive evidence of the election.

Voting Procedures – Announcing the result of a ballot
5.1.27 The Chairman at the Annual General Meeting shall announce the result of the election.

Determining questions of detail for elections
5.1.28 The Board of Directors shall subject to the Constitution and by-laws herein, determine conclusively all questions of detail concerning the election.

Additional Vacancies
5.1.29 The Board of Directors, may at any time appoint a member as an additional director provided that the total number of directors shall not at any time exceed the maximum number of directors allowed by the Constitution. Any director so appointed shall hold office as a casual vacancy until the next election.

Insufficient or no nominations are received
5.1.30 If insufficient or no nominations are received, then a casual vacancy exists, which the Board of Directors may fill pursuant to the Constitution.

5.2 OFFICE BEARERS

Election of Office Bearers
5.2.1 Nominations of candidates for election as President, Deputy President and Treasurer of the Association shall be on the prescribed form and signed by the candidate.

5.2.2 Candidates for an office referred to in By-Law 5.2.1 must be Directors of the Association.

5.2.3 The Board of Directors shall appoint a Returning Officer for the election of office bearers under clause 78 of the Constitution. Such Returning Officer shall not be a member of the Board of Directors.

5.2.4 Nominations for candidates for an election to an office referred to in By-Law 5.2.1 shall close at the commencement of the meeting at which the Board of Directors is to elect its office bearers (see clause 78 of the Constitution). The nominations must be received by the Returning Officer.

5.2.5 If only one candidate is nominated for election to an office referred to in By-Law 5.2.1, the Chairman of the meeting shall declare the candidate nominated to be elected to the appropriate office.

5.2.6 If more than one candidate is nominated for election to an office referred to in By-Law 5.2.1, then a secret ballot shall be conducted at the meeting amongst Directors present at such meeting and such ballot shall be conducted in accordance with the following provisions and otherwise as the Board of Directors from time to time determines.

5.2.7 A Director voting shall mark their ballot paper by placing the number 1 in the square opposite the name of the candidate for whom the Director votes as their first preference, and shall give contingent votes for all the remaining candidates by placing the numbers, 2,3,4 (and so on, as the case requires) in the squares opposite their names so as to indicate the order of preference.

5.2.8 The Returning Officer shall conduct the ballot for elections pursuant to Clause 78 of the Constitution.

5.2.9 The ballot shall be conducted as a secret ballot and votes shall be counted as provided in this By-law.

5.2.10 The Returning Officer shall count the first preference votes given for each candidate and the candidate who has received the largest number of first preference votes shall, if that number constitutes an absolute majority of votes, be elected.

5.2.11 If no candidate has received an absolute majority of first preference votes then:

(a) the candidate who has received the fewest first preference votes shall be excluded, and each ballot-paper counted to that candidate shall be counted to the candidate next in the order of the voter’s preference;

(b) if no candidate then has an absolute majority of votes, the process in By-Law 5.2.11 (a) shall be repeated until one candidate has received an absolute majority of votes.

5.2.12 During the exclusion process, if on any count two or more candidates have an equal number of votes and one of them has to be excluded then:

(a) a count of the number of next preferences for the candidates will continue until a candidate is recognised as having few higher preferences than the other candidates. Once this has been established, the candidate with the fewer votes will be excluded; and

(b) if at the end of this process, the candidates still have an equal number of votes, then the selected candidate for exclusion will be by the drawing of lots.

(c) If more than one position is required from the ballot, all voting papers are returned to the ballot, the already appointed candidate is excluded, and a similar vote allocation process is undertaken. This process is continued until the required number of positions have been decided.

5.2.13 The Chairman of the meeting shall announce the result of any election and declare the successful candidates as being elected to the appropriate office of the Association.

5.2.14 If insufficient or no nominations are received, then the Office shall remain vacant until a Director is appointed to the Office pursuant to By-Laws 5.2.3 to 5.2.12.

Duties of Office Bearers – President
5.2.15 The President shall preside at all Board of Directors and General Meetings of the Association.

5.2.16 In the event of the President being absent the Deputy President shall preside.

5.2.17 The President shall be an ex-officio member of all Committees.

Duties of Office Bearers – Deputy President
5.2.18 The Deputy President will in the absence of the President, act for the President.

Duties of Office Bearers – Treasurer
5.2.19 The Treasurer is responsible for the control of the Association’s finances. The Treasurer shall be responsible for:
(a) the preparation and monitoring of the Association’s budget;
(b) recommend to the Board of Directors the Association’s budget;
(c) recommend to the Board of Directors the proposed Membership Subscription fees;
(d) report to the Board of Directors the current financial position of the Association
(e) the preparation of the annual accounts of the Association.

5.2.20 Where the Board of Directors have appointed a Chief Executive Officer, the Treasurer shall carry out his/her responsibilities in cooperation with the Chief Executive Officer and his/her nominee.

Term of Office of Office Bearers
5.2.21 A part term as an Office Bearer brought about by the filling of a casual vacancy shall not count as a term for the purpose of this By-law.

5.2.22 A former office bearer shall not be eligible for election to that same office within two years of ceasing to hold that office.

5.3 REPRESENTATIVE COMMITTEE

5.3.1 Pursuant to sub-clause 53(15) of the Constitution, the Founding Members of the Association shall form a Representative Committee to advise the Board of Directors on issues of concern to education consultants. The Board of Directors may add other members to this committee as they see fit to ensure that the committee is representative of the education consulting industry.

5.3.2 The committee shall meet at least once per year.

5.3.3 The President of the Association shall act as the Chairman of this committee.

CHAPTER 6: REGISTER OF MEMBERS

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CHAPTER 7: INVESTIGATIONS AND DISCIPLINARY PROCEDURES

Preamble
The Association always aspires to the principles of fairness and equity for all parties involved in a complaint (the member, the Complainant and the Association).

To achieve this aim, the Investigation and Disciplinary procedures shall be independent of undue influence from any party to a complaint and always act in a prompt and timely manner.

Transparency and accountability of the Investigation and Disciplinary Procedures will assist in ensuring the Investigation and Disciplinary Procedures remain independent.

It is the duty of the Association to uphold the principles and standards of the Constitution, By-Laws and Regulations, and ensure that all members abide by such at all times. The standing of the Association and all its members is determinant on the mutual upholding of the highest standards by all its members.

7.1 PROCEEDINGS OF INVESTIGATORS, INVESTIGATIONS REVIEW OFFICER AND DISCIPLINARY TRIBUNALS

Lodging a complaint
7.1.1 Any complaint alleging a breach or breaches of the Constitution against a member of the Association shall be lodged in writing with the Association by any person or organisation.
7.1.2 The Association may itself make an allegation of a breach or breaches of the Constitution against a member where information has been brought to its attention which in the opinion of the Investigator with the approval of the Investigations Review Officer may need investigation, regardless of whether a complaint has been lodged with the Association.

Handling a complaint
7.1.3 Any complaint against a member lodged with the Association shall be referred to the Investigator.

7.1.4 The Investigator shall, in writing, always inform the member of a complaint made against them under 7.1.1 or 7.1.2, the name of the complainant and the nature of the complaint and give the member a reasonable opportunity to respond to the complaint in writing.

7.1.5 The Investigator shall have the power to interview the member concerned and to obtain information from any source deemed necessary.

Request for information from a member
7.1.6 To assist the Investigator, a member must comply with all requests for information from the Investigator. The member must provide that assistance and information to the Investigator within reasonable time as set by the Investigator. The member may seek an extension of time to comply in writing, which the Investigator will not unreasonably deny.

7.1.7 Failure to provide assistance and information in a timely manner to all reasonable requests of an Investigator may constitute a breach of paragraph 90(2)(h) of the Constitution.

Determination of an Investigator
7.1.8 The Investigator shall compile all relevant information and from such information determine whether in the Investigator‘s opinion:

(a) The member has no case to answer in relation to the complaint;

(b) Whether the complaint should be referred to Arbitration or Mediation for resolution;

(c) The member has a case to answer in relation to the alleged breach or breaches of the Constitution and either:
(i) recommend Voluntary Resolution of the complaint, if appropriate; or
(ii) refer the matter to the Disciplinary Tribunal to hear the case

Reviewing the determination of the Investigator
7.1.9 The Investigator shall refer their recommendation for the approval of the Investigation Review Officer.

Notice of the Investigator’s determination
7.1.10 The Investigator will then communicate the decision to the member and the Complainant within 14 days of the approval or disapproval of the Investigator’s recommendation by the Investigation Review Officer.

Other Interaction between the Investigator and the Investigations Review Officer
7.1.11 The Investigator may seek the opinion of the Investigations Review Officer in relation to an investigation at any time.

Regular Statistical reports
7.1.12 The Investigator must make regular reports to the Board of Directors on opinions reached from their investigations. This report shall not disclose the names of the parties to the complaint.

Arbitration or Mediation

7.1.13 The Investigator will refer the member and the Complainant to Arbitration or Mediation where, in the opinion of the Investigator, the complaint does not involve breaches of any law or the Constitution, By-Laws or Regulations of the Association.

7.1.14 The Investigator will refer the parties to a Qualified Arbitrator or Mediator to hear a complaint.

7.1.15 The Association shall not be responsible for the conduct or costs of Arbitration or Mediation.

7.1.16 A member cannot be compelled to undertake Arbitration or Mediation.

7.1.17 If Arbitration or Mediation does not produce a settlement, the Investigator, with the approval of the Investigation Review Officer shall decide as to whether the member has a case to answer or not and whether the matter should proceed to a Disciplinary Tribunal.

Voluntary Resolution
7.1.18 The Investigator may, with the approval of the Investigation Review Officer recommend to the member, that they accept a Voluntary Resolution of the alleged breach or breaches. The member shall communicate their decision to accept or reject the Voluntary Resolution in writing.

7.1.19 If the member rejects the Voluntary Resolution, the complaint will proceed to a Disciplinary Tribunal.

Other actions to rectify areas of concern
7.1.20 The Investigator may, with the approval of the Investigation Review Officer, recommend to the Board of Directors, that the Association handle certain complaints or classes of complaints by administrative action. Such administrative action shall be designed to rectify areas of concern and could include, but is not limited to, giving additional information to a member or members, requiring certain members undertake compulsory professional education, or requiring a member or members make undertakings to the Association in relation to professional activities.

What happens if a member is found to have a case to answer?
7.1.21 In the event that, in the opinion of the Investigator, with the approval of the Investigations Review Officer, the member in question has a case to answer in relation to the alleged breach or breaches and such allegation or allegations shall be heard by the Disciplinary Tribunal, the Association shall arrange for a Disciplinary Tribunal to be formed for the purpose of hearing the allegation or allegations as soon as is practical.

Composition of a Disciplinary Tribunal
7.1.22 A Tribunal shall comprise of a Chairman, and at least one other member. At least one of the members of the Tribunal shall not be a member of the Association.

Composition of a Disciplinary Tribunal – hearing a complaint

7.1.23 In the event of the unexpected unavailability of a Tribunal member or members, the hearing shall be adjourned until another suitable date.

7.1.24 In selecting who shall sit on a Disciplinary Tribunal, the Board of Directors shall have regard to ease of availability and any special skills that may be appropriate.

Disciplinary Tribunal members – obligations
7.1.25 All Tribunal Members will make an undertaking to the Association to act fairly and honestly in all cases, to excuse themselves from any case where they may be or perceived to be in conflict of interest.

7.1.26 Tribunal members may be required to undergo training or to complete courses approved by the Board of Directors. Failure to comply with such will mean immediate removal from membership of the Tribunal.

Disciplinary Tribunal hearing – notification
7.1.27 The member in question shall be informed in writing of the time and place of the meeting of the Disciplinary Tribunal and of the alleged breach or breaches of the Constitution to be considered, at least twenty-one days before the meeting.

7.1.28 At least fourteen days before the date set for the hearing, members of the Disciplinary Tribunal shall be provided with copies of such documents relating to the alleged breach or breaches that have already been referred to the member concerned. That is, the Disciplinary Tribunal will only have access to information in relation to the alleged breach or breaches that the member has been given.

Disciplinary Tribunal hearing – representation
7.1.29 The member in question shall advise the Association in writing at least seven days prior to the meeting of the Disciplinary Tribunal whether or not he/she will attend the Disciplinary Tribunal either in person or by telephone or whether he/she will be represented at the meeting and by whom they will be represented.

7.1.30 If the member in question does not so inform the Association and appears with a Solicitor or Counsel at the said meeting, the Chairman of the Disciplinary Tribunal shall have power to adjourn the said meeting to enable the Disciplinary Tribunal to engage a Solicitor with or without Counsel to assist it at the adjourned meeting.

Disciplinary Tribunal hearing – role of Investigator
7.1.31 The role of the Investigator before a Disciplinary Tribunal is to set out the facts as discovered through the process of the Investigation and to answer questions as posed by the Tribunal. The Investigator must present all information discovered and answer all questions posed.

Disciplinary Tribunal hearing – role of Disciplinary Tribunal
7.1.32 The role of the Disciplinary Tribunal when hearing a complaint is to consider all the information that has been brought to its attention as to whether a member has breached the Constitution, By-laws or Regulations of the Association. The Chairman of the Disciplinary Tribunal shall have the power to obtain and receive additional evidence during the hearing of a complaint, including evidence from third-party experts.

Disciplinary Tribunal hearing – adjournment
7.1.33 The Disciplinary Tribunal has the right to adjourn any hearing at any time if it considers it advisable to do so in order to clarify any facts in dispute or to review new information that may be presented.

7.1.34 The Disciplinary Tribunal may demand the production of information and documentation deemed necessary to arrive at a satisfactory decision, and may adjourn a hearing to give time for such to be provided.

Disciplinary Tribunal hearing – Burden of proof and balance of probabilities
7.1.35 The burden of proof to show that a breach has occurred rests with the Association, as represented by the Investigator. The Disciplinary Tribunal is to make its determination based on whether on the balance of the facts presented that a member has committed a breach, and if so found, a suitable penalty shall be imposed.

Disciplinary Tribunal hearing – making a decision
7.1.36 In reaching a decision on a complaint, the Disciplinary Tribunal makes its decision by a simple majority of its members. If there is no majority at first instance, then the Chairman shall have the casting vote.
7.1.37 A notice of the decision of the Disciplinary Tribunal is to be sent to the member concerned in writing within 14 days of the decision being made. Such notice of decision shall also inform the member of their right of appeal under the Constitution.

Disciplinary Tribunal hearing – recording a summary of decision
7.1.38 All findings and decisions of a Disciplinary Tribunal arising out of a hearing together with a statement in summary (but not in detail) of the facts placed before the Disciplinary Tribunal shall be duly recorded.

Investigator – regulating the conduct of an Investigator
7.1.39 The responsibility for regulating the conduct of an Investigator rests the Investigations Review Officer.

7.1.40 The Investigator must follow the Association’s procedures for investigating a complaint.

Investigator – regular statistics
7.1.41 An Investigator shall furnish regular reports to the Board of Directors stating the number and type of complaints, what geographical area the complaints are originating from, the action stemming from those complaints, the opinion of the Investigator on the complaint, the decision of the Disciplinary Tribunal and the Appeals Tribunal (if applicable) and the period of time between the lodgement of the complaint and its resolution or to the stage where no further action is required.

7.1.42 The Association may use the information gathered from the Investigator’s report to develop programs to alleviate areas of concern. The Association may make this information publicly available.

Disciplinary Tribunal – Regulating hearings
7.1.43 The responsibility for regulating hearings of the Disciplinary Tribunal rests with the Board of Directors. The Board of Directors has the responsibility for establishing the procedures necessary for conducting hearings of a Disciplinary Tribunal. Interpretation of the procedures for regulating the hearings of Disciplinary Tribunals rests with the Board of Directors.

7.1.44 The Disciplinary Tribunal must when following procedures in hearing a complaint, implement those procedures in a manner that is reasonable and in the interests of all parties involved.

7.2 APPEALS FROM DISCIPLINARY TRIBUNAL

Appeals Tribunal – procedures
7.2.1 In the event of an appeal against a decision of the Disciplinary Tribunal being validly made, an Appeals Tribunal shall be formed.

Composition of an Appeals Tribunal
7.2.2 An Appeals Tribunal shall comprise of a Chairman, and two other members. At least one of the members of the Tribunal shall not be a member of the Association. It shall not comprise any member involved in the original hearing.

7.2.3 In the event of the unexpected unavailability of a Tribunal member or members, the hearing shall be adjourned until another suitable date.

7.2.4 In selecting who shall sit on an Appeals Tribunal, the Board of Directors shall have regard to ease of availability and any special skills that may be appropriate.

Appeals Tribunal members – obligations
7.2.5 All Tribunal Members will make an undertaking to the Association to act fairly and honestly in all cases, to excuse themselves from any case where they may be or perceived to be in conflict of interest.

7.2.6 Tribunal members may be required to undergo training or to complete courses approved by the Board of Directors. Failure to comply with such will mean immediate removal from membership of the Tribunal.

Appeals Tribunal hearing – notification
7.2.7 The member in question shall be informed in writing of the time and place of the Appeals Tribunal meeting, at least twenty-one days before the meeting.

7.2.8 At least fourteen days before the date set for the hearing of the Appeals Tribunal, members of the Appeal Tribunal and the member shall be provided by the Association with copies of such documents relating to the findings and decisions of the Disciplinary Tribunal, together with the statement in summary of the facts and all the information placed before the Disciplinary Tribunal.

Appeals Tribunal – representation
7.2.9 The member shall be given the opportunity of being heard in person or by their Solicitor or Counsel or by some other member on their behalf and of presenting such evidence as the appellant may desire.

7.2.10 The member shall advise the Association in writing at least seven days prior to the date for hearing of the appeal whether or not the member is to be represented at the hearing and by whom they are to be represented. If the member fails to advise the Association, then the Appeals Tribunal is to assume that the member will be representing themselves unless that assumption is unreasonable.

Appeals Tribunal hearing – role of Investigator
7.2.11 The role of the Investigator before an Appeals Tribunal is to set out the facts as discovered through the process of the investigation and to answer questions as posed by the Tribunal. The Investigator must present all information discovered and answer all questions posed.

Appeals Tribunal hearing – role of the Appeals Tribunal
7.2.12 The role of the Appeals Tribunal when hearing an appeal by the member against a finding by the Disciplinary Tribunal that the member has breached the Constitution, is to re-consider all the information that was brought to the attention of the Disciplinary Tribunal and to reconsider whether a member has breached the Constitution, By-laws or Regulations of the Association. The Chairman of the Appeals Tribunal shall have the power to obtain and receive additional evidence during the hearing of a complaint, including evidence from third-party experts.

7.2.13 The role of the Appeals Tribunal when hearing an appeal by the member or the Association against the penalty or penalties imposed by the Disciplinary Tribunal for a breach or breaches of the Constitution is to re-consider based on all the information that was brought to the attention of the Disciplinary Tribunal whether the penalty or penalties imposed is appropriate. The Chairman of the Appeals Tribunal shall have the power to obtain and receive additional evidence during the hearing of a complaint, including evidence from third-party experts.

7.2.14 In the case of an appeal, the material that shall be considered by the Appeals Tribunal shall be the documents referred to in By-law 7.2.8 together with any additional documents or submissions that may be produced or made by or on behalf of the member or the Investigator.

7.2.15 Where the Investigator producers additional documents or submissions, the Appeals Tribunal is to only consider such additional information if it is given to the Appeals Tribunal and the member concerned at least 14 days prior to the date of the hearing of the Appeals Tribunal.

Appeals Tribunal hearing – adjournment
7.2.16 The Appeals Tribunal has the right to adjourn any hearing at any time if it considers it advisable to do so in order to clarify any facts in dispute or to review new information that may be presented.

7.2.17 The Appeals Tribunal may demand the production of information and documentation deemed necessary to arrive at a satisfactory decision, and may adjourn a hearing to give time for such to be provided.

Appeals Tribunal hearing – Burden of proof and balance of probabilities
7.2.18 Where a member is appealing against a finding that they have breached the Constitution, the Appeals Tribunal is to conduct a re-hearing. The burden of proof to show that a breach has occurred rests with the Association (who is represented by the Investigator). The Appeals Tribunal is to make its determination based on whether on the balance of the facts presented that at the re-hearing that the member has committed a breach, and if so found, a suitable penalty shall be imposed.

7.2.19 Where a member or the Association is appealing against the penalty or penalties imposed by the Disciplinary Tribunal for a breach or breaches of the Constitution, the Appeals Tribunal is to make its determination on the suitability or otherwise of the penalty or penalties imposed based on whether on the balance of the facts presented, it finds that based on the breach or breaches committed (which has already been decided by the Disciplinary Tribunal) that the penalty or penalties is suitable.

7.2.20 Where a member or the Association is appealing against the penalty or penalties imposed by the Disciplinary Tribunal for a breach or breaches of the Constitution, the Appeals Tribunal may increase or decrease the severity of the penalty or penalties or leave the penalty or penalties as decided by the Disciplinary Tribunal.

Appeals Tribunal hearing – making a decision
7.2.21 In reaching a decision on a complaint, the Appeals Tribunal makes its decision by a simple majority of its members. If there is no majority at first instance, then the Chairman shall have the casting vote.
7.2.22 A notice of the decision of the Appeals Tribunal is to be sent to the member concerned in writing within 14 days of the decision being made. Such a decision is final.

Appeals Tribunal hearing – recording a summary of decision
7.2.23 All findings and decisions of the Appeals Tribunal arising out of a hearing together with a statement in summary (but not in detail) of the facts placed before the Appeals Tribunal shall be duly recorded.

Miscellaneous
7.2.24 The Investigator shall act for the Association in any Appeal.

7.3 PUBLIC NOTICE OF FINDINGS

Penalties
7.3.1 The members that have had the following penalties imposed on them by the Disciplinary Tribunal and the Appeals Tribunal will have their name published together with a short description of the breach or breaches of the Constitution that the penalty or penalties relate too:

(a) Forfeiture of membership:

(b) Suspension of membership:

(d) Censure

7.3.2 The members that have had the following penalties imposed on them by the Disciplinary Tribunal and the Appeals Tribunal will not have their name published. The Association may however provide a short description of the breach or breaches of the Constitution that the penalty or penalties imposed for such a breach relate too, to the public:

(a) Admonishment:

(b) A fine of $1,000 or less

(d) Payment of costs

7.3.3 Where there is a combination of penalties imposed on a member for a breach or breaches and some of those penalties require publication of the member’s name on non-publication, the member’s name is to be published in accordance with 7.3.1.

7.3.4 Publication of the member’s name includes publication of the members name in the Association’s newsletter, web site or by press release.

7.4 Miscellaneous

Notice to Statutory Authorities
7.4.1 The Association shall pass on to appropriate statutory authorities information regarding members that may be required by law, regardless of whether the Association undertakes action in regard to such information itself. The Association will provide such statutory authorities with the necessary levels of support where required.

7.4.2 If the Association becomes aware that a member may have breached the law, it shall forthwith inform the appropriate authorities in relation to such a matter.

7.5 DEFINITIONS FOR BY-LAW 7

7.5.1 “Arbitration” means the determination of disputes by the decision of one or more persons called Qualified Arbitrators.

“Case to answer” means that in the view of the Investigator and the Investigations Review Officer, there is sufficient evidence to prove that the member has breached the Constitution.

“Complainant” means a person or persons, whether natural person or not, who lodge a complaint or complaints against a member of the Association.

“Disciplinary Tribunal” is appointed under the Constitution to hear and decide on complaints against members.

“Mediation” means the resolution of complaints by the agreement of the parties to settle complaints with the facilitation of a Qualified Mediator.

“Qualified Arbitrator” means a person or persons whom the Board of Directors recognise as being competent to conduct Arbitration between the Complainant/s and a member.

“Qualified Mediator” means a person or persons whom the Board of Directors recognise as being competent to conduct Mediation between the Complainant/s and a member.

“Voluntary Resolution” means a remedial course of action an Investigator may suggest to a member the subject of a complaint. The Investigator may only suggest remedial action when, with the approval of the Investigations Review Officer, it has been found that the member has a case to answer for an alleged breach or breaches. Such remedial action may include an undertaking by the member to participate in Continuous Professional Education in a certain area.

CHAPTER 8

8.1 FEES AND SUBSCRIPTIONS

8.1.1 In accordance with directives given from time to time by the Board of Directors, the Association may, for reasons it considers adequate, excuse any member for such period as it may think fit from payment of subscription and fees in whole or in part.