Governance Changes

At the RANZCO Annual General Meeting in 2014 there was an unsuccessful vote to change the Constitution. Clearly a number of Fellows felt they did not have enough information. Please see some questions and answers below as well as documents where detailed answers to queries are addressed.

Why change the Constitution?

The Constitution is the primary source of information around the Objectives of our company, the role and relationship between Fellows (members), the Board, Council and executive managers. It provides rules and structures for key meetings and processes.

The current Constitution is very old in many ways, based substantially on the original Articles of Association from 1969, and does not adequately address the current Australian Charities and Not-for-profit Commission Act, the 2001 Corporations Act, and what is now considered best practice for operating company which is a registered charity. We need to comply with all of these. The new Constitution addresses these shortcomings and establishes a new governance framework for the future of RANZCO, in a way that it is hoped will not need to be altered for many more years. It has been developed with the assistance of Prolegis Lawyers, a firm that specialises in not-for-profit governance.

The Constitution is one part of a number of proposed key changes including new By-Laws relating to membership, governance, Council, complaints and appeals.

What happens if I don’t wish to abide by the Constitution?

The constitution has always been, and continues to be, a contract between the College and fellows, and between fellows. To become a fellow, a person must consent to abide by the terms of the constitution which are binding on members and the College alike.

The admission or exclusion of ophthalmologists to RANZCO Fellowship has always, and will remain, the decision of Council. Fellowship is not a requirement to practice ophthalmology, and consequently earn an income, in Australia or New Zealand. That is a matter between individual doctors and the Medical Board of Australia or Medical Council of New Zealand. Admission to Fellowship is not a right, rather it comes with obligations, rules and certain privileges. Under the new Constitution these have not changed. Anyone who does not wish to abide by the rules is free to resign as a member or not to join RANZCO.

Who can be on the Board?

Under the new Constitution any Fellow is eligible to stand for election as a Director. Directors are still elected by the Council, but are not restricted to existing Councillors. This allows the opportunity for Fellows from a broader base to offer their skills and service to RANZCO. The Board will be capped at 11, and can be no less than 3 (as required under Corporations Law). It was considered whether we should have non-ophthalmologist Directors, but decided that as a membership-based company our Directors should be members.

Further, it would be difficult for a few non-ophthalmologists to make the sort of wide-ranging contributions we might expect (e.g. a specialist commercial lawyer board member could not be expected to be an expert in tax or constitutional law). Expert opinion on a specific issue can be sought when required. Currently the maximum term for a Director is 10 years, a President could be up to 12 and a Vice-President much longer if they never moved to President. The new Constitution will cap Director terms at 9 years. This includes for President and Vice-President whose terms in these positions will be included in their 9 years as a Director.

Can the Board overthrow the Council?

It would be impossible for the Board to overthrow the Council as, under the new Constitution, the Council is made up of Branch representatives, Chairs of a wide range of large groups and committees and representatives from associated organisations such as the ORIA and RANZCO Eye Foundation. There is no mechanism for the Board to appoint or elect the Council; it is in fact the other way around.

Should the Board lose the confidence of the Council, there is now a clear mechanism in the new Constitution to remove the Board and put in place one that better represents Fellows’ interests. This does not currently exist.

Why are we referred to as a charity?

RANZCO is not only a not-for-profit institution, but it exists for the public benefit and has objects which are charitable under law. It is therefore a charitable institution. In order to access tax concessions, including income tax exemption, RANZCO must be registered as a charity with the ACNC.

Why is the Professional Code of Conduct in the Constitution?

The Professional Code of Conduct is seen as an important element in ensuring the future of RANZCO as a relevant organisation not only for Fellows, but also in the eyes of regulators and the public. Under the new Constitution agreement to abide by the Professional Code of Conduct becomes a requirement of Fellowship.

The Code is not to be seen as being onerous, rather it is a reflection of existing laws, regulations and guides from authorities and other medical membership organisations made specific to ophthalmology. It is a document that will be revised when appropriate given changing circumstances. It is not seen as a tool for the RANZCO Council to begin the wholesale removal of Fellowship, but could be used if someone was found to be flagrantly operating well outside the boundaries of normal accepted practice.

Any consideration to remove Fellowship requires the agreement of a two thirds majority of Council members; unchanged from the current Constitution. In most cases any serious issues will be dealt with by external bodies such as the Medical Board of Australia or Medical Council of New Zealand.

Who can be a member?

Under the new Constitution only Fellows will be members and have associated voting rights. Honorary Fellows and Associate Members (such as orthoptists or practice managers) will receive some services but will not have voting rights. The Council retains the right to refuse membership, including Fellowship, without reason. This is important as it protects RANZCO from having to accept allied health professionals, for example, or ophthalmologists likely to tarnish the very good reputation of RANZCO, and it avoids potential legal issues. This responsibility is not taken lightly by Council.

What decisions will Council make?

Under the new Constitution the Council will have the same powers as existing, and one important new one too (in bold). In summary they are: advise and consult with Directors as required; elect Directors; remove Directors if required; admit Fellows; remove, discipline or terminate Fellowship; grant awards. The ability of Council to discipline or revoke Fellowship must be by two-thirds majority of Council and cannot be a Board decision alone.

The Board, having the ultimate legal responsibility, would have to make a final sign-off but would do so on recommendation of the Council. This is no different to what exists under the current Constitution.

However, having the Professional Code of Conduct as a requirement of Fellowship under the new Constitution does provide a much clearer guide for expected behaviour.

Will there be a loss of transparency around decision making?

The Board and Council do not believe that there is any loss of transparency around the decision making process. The new Constitution maintains existing rights of disclosure of accounts and decisions, noting that it is worded slightly differently differently to the existing constitution. This is in line with the Corporations Act and modern constitutionsand best governance best practice. All Boards need the right to limit sensitive information in order to discharge their duties in the best interests of the company.

Details of policies and processes are now set out in By-laws, so as not to limit the ability to modify them as laws or circumstances change. RANZCO policies and processes, which will be contained in the By-laws, are widely published and available to all members, and are regularly reviewed. As changes to a constitution require approval of 75% of eligible members it can be difficult to make changes should the need arise. There are many checks and balances via committees, Board and Council to ensure policies are fair.

Why New Zealand is not specifically mentioned?

Companies cannot have dual country registration. As RANZCO’s head office is registered in Australia it makes sense to have a constitution drafted around Australian laws and regulations. Our advice is that the primary laws around governance are not so different between Australia and New Zealand that it will affect our NZ Fellows. There are local tax and financial year issues to consider, but we have dealt with them for many years and they are not changed by the new constitution. The duty to keep accurate financial records and disclose audited accounts, for example, is the same in both countries.

Documents

pdfProlegis Lawyers Capability Statement

pdfLetter from Brendan Vote, re: Constitution Changes

pdfReply from Prolegis, re: Constitution changes

pdfLetter addressing questions raised at the AGM

pdfDetailed Explanatory Memorandum

pdfBy-Law: Membership, Council and Governance

pdfLetter from RANZCO CEO about Key Drivers for Change (as referred in RANZCO e-news January 30)

pdfGovernance: Reasons for Change

pdfConstitution Comparison Table

New Constitution

pdfNew Constitution

New Constitution (tracked changes)

Extraordinary General Meeting

pdfRANZCO 2015 EGM Notice and Proxy Form

 

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