The Price of Liberty is Eternal Vigilance Administration Seminar ASC Coffs Harbour Mr John Boyle Business Services Manager
Presentation Overview 1. Results of Compliance review 2. Trustees 3. Donations 4. Mortality Payments 5. Questions
Compliance Review All RSL sub-branches and their subsidiaries need to be compliant with the Constitution of RSL NSW & both Federal and State Acts. An RSL Audit team consisting of CFO, Miss Annette Mulliner OAM, Julian Waetford and myself has been conducting audits of RSL sub-branch s and their subsidiaries. These audits will cover not only financial information but all activities of the RSL sub-branch or subsidiary. The audit team visited 54 RSL sub-branches last year.
Compliance Review Introduce Julian Waetford
Trustees A sub-branch Trustees duties arise out of several sources, including the Trust instrument itself, The RSL NSW Constitution, By-laws and Regulations, Common Law and Acts of Parliament (The Trustee Act).
Trustees (cont.) A Trustee is an honoured person in a sub-branch. He or she is generally appointed by their fellow members because they see them as a custodian of their interest in their sub-branch and a responsible person. The Officers and Committee of the sub-branch should keep their Trustees fully informed as to any transactions affecting their Trusteeship, so that they can perform their duties in an efficient manner.
Trustees (cont.) State Branch and State Council continue to experience concern that many sub-branches and members of the League are apt to view the provisions of the Constitution dealing with Trustees and property namely Clause 34 and its associated By-Laws and Regulations, with a degree of indifference, and as a result tend to by-pass the requirements, to the detriment of their members.
Trusteeship The formal definition of a Trustee is that he is a person entrusted with property of another and who is capable and possessed of natural ability to execute a Trust and to carry out his duties in a prudent matter similar to how he would act if the property belonged to him personally. A Trust is an equitable obligation binding a person (who is called the Trustee) to deal with property over which he has control (which is called Trust Property) for the benefit of persons (who are called beneficiaries) of whom he may himself be one, and any one of whom may enforce the obligation.
Property & Authority Property includes real and personal property, and any estate or interest in any property, real or personal and any debt, and anything in action, and any claim or demand, and any other right or interest, whether in possession or not. The Authority of a sub-branch Trustee comes from the appointment of a Trustee as a financial member of the sub-branch who shall hold office as a Trustee in accordance with the Constitution of The Returned and Services League of Australia (New South Wales Branch).
Appointment of a Trustee (cont.) Clause 34 of the Constitution requires that every sub- Branch shall appoint three financial members as Trustees, in whom all real and personal property shall vest and they shall be empowered to prosecute, sue or maintain any legal action necessary against any person or corporation in respect of sub-branch property. Sub-Branch Trustees are initially nominated at a sub- Branch General Meeting and their names are recorded in a Deed of Appointment which embodies a Declaration of Trust, setting out the fact, amongst other things that the Trustees hold real and personal property on behalf of the sub-branch.
Appointment of a Trustee (cont.) To give effect to the nomination, the sub-branch President is empowered under sub Clauses 34.1 (d) to appoint new or additional Trustee/s as provided by the provisions of Section 6 and 7 of the Trustees Act (as amended) by Deed (Deed of Appointment). It is sufficient then that the President will execute a Deed of Appointment which must then be registered where real estate is involved with the Registrar General so that the name of the new Trustees can be entered on the Title Deeds of any real estate under Torrens Title.
Appointment of a Trustee (cont.) Where Trustees of a sub-branch hold personal property only and not any real estate, it would be necessary to complete a Deed of Appointment for personal property (available from State Branch). Sections 6 and 7 of the Trustee Act require that any Deed of Appointment be registered in the General Register of Deeds. The actual procedure of the registration of a new Trustee/s should be undertaken by a solicitor.
Replacement of Trustee Where a Trustee is to be replaced it will be necessary that a new Trustee be appointed as provided for in the sub- Sections of Clause 34 in the Constitution. This must be done at a General Meeting of which fourteen (14) days notice has been given, specifying that a new Trustee is to be appointed. So that a solicitor may proceed to stamping the Deed of Appointment and registration thereof, in the case of Torrens Title land, the Stamp Duties Office requires to sight a stamped copy of the original Deed of Appointment to which the appointment relates.
Trustee Powers Apart from the powers contained in the Trust instrument, a Trustee has certain statutory and implied powers. Some of these powers are exercisable by the Trustee in his discretion (providing such is not negated by the Trust instrument) and other powers may only be exercised with approval of State Council e.g., in equity it would be a breach of Trust to sell Trust assets without State Council approval as provided for under sub Clause 34.4.
Relationship with sub-branch Management Committee Sub-Branch Trustees will have the right to attend meetings of the sub-branch Committee and to speak on issues affecting their trusteeship only. A sub-branch Trustee will not have a right to vote, in their capacity as trustee at any sub-branch Committee meetings and their attendance will not form part of any required quorum. The appointment of a Member as a sub-branch Trustee will not otherwise affect their rights and obligations as a Member.
Duties of a Trustee to keep the Committee and members of the sub-branch regularly and fully informed on all matters arising for consideration from time to time, affecting all or any property the subject of the trust. not to breach the trust vested in him. not to breach the document (such as the RSL NSW Constitution) under which the Trust was created. to obey the terms of the Trust. to comply with the requirements of the NSW Trustee Act 1925. to act so to prevent a breach of Trust.
Duties of a Trustee (cont.) under sub Clause 34.3 the Trustees must keep detailed accounts of transactions relating to funds and property under the Trustee control (such as real estate vested in them for the sub-branch). Trustees must ensure the Trust property, including all original documents relating to such property are placed in a state of security. The Trust property must be in the joint control of all the Trustees and not left in the possession of one or only some of them. Bearer bonds, for instances, should be deposited at a Bank in the joint names of the Trustees.
Duties of a Trustee (cont.) They are required to ensure property is properly maintained, properly insured and they may be called on to control or sell or convert property into money and invest the proceeds in accordance with the requirements of the Trustee Act. A duty to exercise the powers of the trust in the best interests of all present and future beneficiaries of the trust. A duty to invest funds in investments that are not speculative or hazardous. A duty to act impartially towards beneficiaries and between different classes of beneficiaries. A duty to take advice.
Duties of a Trustee (cont.) Trustee powers and duties are specifically set out under Clause 34 of the RSL NSW Constitution & Chapter 1 of the RSL NSW Property and Finance Regulation
Liability of sub-branch Trustees Any sub-branch Trustee or other sub-branch Officer, who is in breach of clause 34 of the RSL NSW Constitution will be liable for the loss suffered by the sub-branch and may be sued by RSL NSW on behalf of the sub-branch for any loss or damage suffered or incurred by the sub- Branch.
RSL Custodian Pty Ltd Sub Clause 34.1 (a) was formed to allow sub-branches to avail themselves of the complete security in relation to Trusteeship of property by the RSL Custodian Pty Ltd. RSL Custodian Pty Ltd is designed to relieve sub- Branches of what can be costly repetition of legal expenses in executing Memorandum or Transfer of land vested in one set of Trustees to another due to death, retirement or removal etc., of one or more members, an occurrence which is brought about from time to time, sometimes frequently. The legal position becomes even more complex and involved where a member of the Trust leaves the district leaving no forwarding address or goes abroad and fails to return.
RSL Custodian Pty Ltd (cont.) Where Trusteeship is accepted by RSL Custodian Pty Ltd IT DOES NOT DEPRIVE the sub-branch of the control of its property in any way and the sub-branch can at any time, should it desire, ask the RSL Custodian Pty Ltd to return such Trusteeship to the sub-branch Trustees. It makes no difference whether Title is vested in sub-branch Trustees or RSL Custodian Pty Ltd, should a sub-branch wish to lease, mortgage or dispose of its land or buildings, it is still necessary in the first instance to obtain the prior consent of State Council or State Executive.
RSL Custodian Pty Ltd (cont.) The administrative procedure for the Transfer of Trusteeship of sub-branch real property from the sub-branch Trustees to RSL Custodian Pty Ltd is clearly detailed in Chapter 1 Item 1.57 66 of the RSL NSW Property and Finance Regulation.
Trustee Conclusion The Trustee Act places obligations on the Trustee as does Common Law and the Constitution of The Returned and Services League of Australia (New South Wales Branch). To generalise a Trustee in discharging his duties must observe all reasonable diligence in order to escape liability for any loss sustained by the Trust estate. The degree of diligence is that which a prudent man of business would exercise in dealing with his own private affairs. It is his duty to satisfy himself as to what is happening to Trust property.
Trustee Conclusion (cont.) Trustees under the provisions of the State Branch Constitution are obliged to ensure no property vested in their names (including Women s Auxiliary, Youth Clubs or any other body formed under the Constitution) is sold, transferred, conveyed, alienated, mortgaged, leased or given to any person or corporation without the prior written consent of State Council being first obtained. Finally, what State Branch is concerned with is that sub- Branch members receive from their Trustees the standard of care and respect for their interests they are entitled to under the law.
By- Law 21 and 22 Donation Policy
Where can RSL sub-branches Donate All Donations must meet the ATO s requirement that it be for the PREDOMINANT PURPOSE that the League holds its Charity Status. The Aims and Objects of The Returned and Services League of Australia (New South Wales Branch)
Where can RSL sub-branches Donate By Law 22 of the RSL NSW Constitution sets out general considerations for sub- Branches and subsidiaries as to Donation Policy. State Branch and sub-branches are required to administer RSL affairs and preserve and protect RSL funds and property in compliance with the terms of the Constitution. (ATO Deed)
Where can RSL sub-branches Donate (cont.) Sub-Branch Trustees and Management Committees have an obligation to ensure proper accountability of all members funds. The application of those funds must be made in accordance with the Constitution, By-Laws and Regulations in furthering the objects of the League. (ATO Deed and the reason why RSL NSW & its sub-branches have Charitable status)
Donation Tiers Due to the ATO Deed s requirement that Donations must meet the Predominant Purpose for which RSL NSW and its sub- Branches are a charity, RSL NSW State Council has determined the approved donations and the percentage maximum and minimum sub-branches are allowed to donate to each tier.
Percentage of Income to be Donated The term income for these purposes means the net income after reasonable expenses have been deducted from the sub-branch s gross income. In determining the percentage of income a sub-branch may donate as per the By-Law the following table below applies.
Mortality Payments The Constitution provides that one of the objects of the League and RSL NSW is to provide for the sick and wounded and needy among those who have served, and their dependants, including pensions, welfare & benevolent fund, medical attention, homes and suitable employment. Mortality Payments fall into this category.
Mortality Payments (cont) All recipients of these payments must be bona fide recipients. All payments must be for necessitous circumstances. No Cash payments are to be made. No payments direct to estates, all payments are to be made to providers. i.e. Funeral Directors etc.
Mortality Payments (cont.) The conditions described in the previous slide on Mortality Payments meet the requirements of the ATO and Australian Charities and Not-for- Profit Commission (ACNC).
THANK YOU The Price of Liberty is Eternal Vigilance