Commissioners Corner: Secret Ballots Explained

The concept of holding a secret ballot to determine an outcome is well-established in many different contexts.

Generally speaking, secret ballots are used in situations where there are important decisions to be made and it is therefore essential that anyone entitled to vote can do so freely, without fear of the voter being identified and any resultant recrimination.

When we vote at a state or federal election, for example, a fundamental part of the process is that our vote is secret and that we can, unencumbered, ‘have our say’ on the critical matter of who governs us.

Similarly, in a body corporate context, there are some significant matters on which a secret ballot is required.

Under the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module), matters prescribed as requiring a secret ballot include:

• engaging a body corporate manager to carry out functions of a committee (commonly known as a Part 5 Engagement);
• engaging a person as a service contractor;
• authorising a person as a letting agent (in other words, a person authorised by the body corporate to conduct the letting pool for that community titles scheme);
• terminating the above engagement or authorisation as a result of conviction of the person for a particular offence; and
• terminating the above engagement or authorisation as a result of the person’s failure to act on remedial action notices.

All of these instances are crucial decisions about people who hold a position of authority and influence in relation to the body corporate and so the legislation reflects this by requiring votes be cast at secret ballot.

Other issues may also be decided by secret ballot. A committee can recommend that a motion is decided by secret ballot, or the body corporate can decide by ordinary resolution at a general meeting that a motion or particular type of motion is decided by secret ballot.

Regardless of whether the secret ballot is prescribed or whether the body corporate elects it to occur for a particular issue, body corporate legislation is quite prescriptive above how secret ballots are to be undertaken.

This again is a reflection of how significant the issue being decided by secret ballot is – if something is important enough to be decided ‘in secret’, it follows that the process for deciding just ‘how’ it is going to be kept secret would be quite detailed.

A written vote is cast by marking the secret voting paper, “yes”, “no” or “abstain”, then placing the secret voting paper into the secret voting paper envelope supplied by the secretary and sealing it.

Then the secret voting paper envelope is either placed into a “particulars” envelope, or alternatively, there will be a “particulars” tab on the secret voting paper envelope. The voter must fill in the particulars tab or complete the “particulars” envelope by providing the following information:

• the number of the lot 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 on which the person has a right to vote (e.g., as a member of the body corporate).

Then the voter gives the completed particulars envelope or envelope with particulars tab to the returning officer, or forwards it to the returning officer so that it arrives before the votes are counted at the general meeting. The envelope must be received and held by the returning officer directly with no intermediary having access to the envelope.

The body corporate must keep all voting papers and envelopes for six years. An owner, occupier or interested person can access the secret ballot papers in the same way they can access other body corporate records.

There are also requirements about who may (or rather, may not) be a returning officer and what their particular responsibilities are in relation to the secret ballot.

I appreciate that for a number of people reading this article, the process of conducting a secret ballot may appear complicated or even convoluted.

That said, I again remind everyone that secret ballots reflect that a significant matter is going to be decided, so the integrity of the ballots and the votes cast in it are vital.

Given this, it may be prudent for a lot owner who is being asked to vote in a secret ballot, or a committee that is in the process of conducting or thinking of conducting a secret ballot, to seek legal advice about their rights and responsibilities in relation to a secret ballot.

Being informed prior to casting a vote will help to ensure that regardless of the outcome of the secret ballot, everyone involved can have relative confidence that the process has been conducted fairly.

The Information Service of my Office is not able to make a determination about whether a particular secret ballot has been ‘correctly’ conducted and nor is it able to advise a party (such as a returning officer) on how to exercise some functions in the process.

That said, the Information Service can give general information about body corporate legislation. For further information please contact freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.

This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management