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What you need to know about the new “medical research” function for an Enduring Power of Attorney

Friday, September 30, 2016

On 1 September 2016 the Powers of Attorney Act 2006 (the Act) was amended to allow a person (the Principal) to authorise their nominated attorney to make decisions about medical research matters involving ethically approved research when the Principal becomes a person with impaired decision making capacity. This authority is in addition to the existing authorities in the Act, namely, for the attorney, if authorised, to make decisions relating to:

(a)   property

(b)   personal care

(c)   health care

Context

People with impaired decision making capacity cannot give consent to participate in medical research, so a substitute decision maker in the form of an enduring attorney, is required to give consent on their behalf. Previously, the Act did not allow for this. Before the changes to the Act, people with impaired decision making capacity were prevented from participating in medical research as they could not legally give consent to do so.

The changes to the Act means that people with impaired decision making capacity may now receive treatment from participating in medical research if they have given their enduring attorney the authority to make such decisions, where they previously could not. The amendment may indirectly assist health researchers in developing innovative treatments which may benefit a class of people with a particular health condition.

Safeguards to attorney’s power

The explanatory statement to the Powers of Attorney Amendment Bill 2015 describes the new function as striking an appropriate balance between removing barriers to participation in medical research and protecting a person’s right not to be involved in medical research.

This balance is achieved through the existing checks and balances on attorneys, which oblige attorneys to act only within the boundaries of their authority and only in the best interests of the Principal, and a two-tiered decision making process that attorneys must follow when making a decision about a Principal’s participation in medical research matters.

The type of medical research

A person may give their attorney the power to consent on their behalf to low risk research and medical research. This includes:

(a) research projects involving minor uncontroversial treatment that has been approved by a human research ethics committee           

(b)  experimental health care, which may or may not be medical in nature

What If I’ve already got an Enduring Power of Attorney (EPA)?

Where a person has an existing EPA that was made before the commencement of the changes to the Act, and in their EPA they authorised their attorney to make decisions in relation to their health care, their attorney can also consent to their participating in medical research.

This means that you do not need a new EPA simply to authorise your attorney to consent on your behalf to medical research when you become a person with impaired decision making capacity. If you do not want your attorney to have this power, and are unsure what your EPA authorises your attorney to do on your behalf, it may be appropriate to contact our estate planning team to assist.

If you would like to put in place an Enduring Power of Attorney, our estate planning team can assist. Please call us on (02) 6162 1613. 

 

5 essential probity tasks in government procurement

Wednesday, September 21, 2016

When the Government spends money, it is spending your money and my money, so we expect that there is a certain level of transparency and accountability. If there is little transparency or accountability, it is easy to throw around allegations of bias, and unfair advantage. Such allegations are not only damaging to the individuals involved, but also have the potential to embarrass the government of the day.

 

Here in Canberra, both the ACT Government and Commonwealth Government are subject to various procurement and probity legislation and policy. The key sources are the Government Procurement Act 2001 (ACT) for the ACT Government, and the Commonwealth Procurement Rules for the Commonwealth. The details are all largely common sense, but these can be difficult to apply when caught up in an often lengthy and complex procurement. The following are a list of steps you can take to protect yourself against allegations that you have not acted with probity:

 

1.      Declare any actual or potential conflict of interest.

 

And once you have declared a conflict, a decision should be made on how to deal with the conflict. It does not always means excluding someone from the process – but it could mean limited access to information or decision making roles.

 

2.      Don’t be involved in the procurement process if you deal with current suppliers.

 

If you deal with current suppliers, you probably should avoid working on the procurement process. It will remove the concern that current providers have an unfair advantage because they are already working with the decision makers.

 

3.      Implement processes for dealing with enquiries or questions that arise.

 

There should be one point of contact for dealing with enquiries. That person should be trained on protocols for responding, and have clear guidance on what information can be released.

 

4.      Be consistent.

 

For example, ensure all potential suppliers receive the same information and do not accept any late tenders. There is tested case law on the need for Government to be consistent in procurement.

 

5.      Develop and implement a probity plan.

 

All of the above points, plus more, should be set out in a probity plan at the beginning of a procurement, and covered off in a probity briefing to all relevant staff. This will help ensure compliance with the relevant rules, and help remove the risk of allegation of a lack of probity in your procurement.

 

Griffin Legal can assist Commonwealth Departments as a probity advisor. Your Department can engage Griffin Legal either through the Legal Services Multi-Use List, or the Department of Immigration and Border Protection Consultancy and Business Services Panel which a number of Departments have piggy backed on.

 

Finally, we note that there is talk that a Bill will shortly go before Federal Parliament which will significantly increase the level of scrutiny around government procurement. Once the details are released we will provide comment on the implications for Departmental processes.

Debt Recovery Challenges

Thursday, September 15, 2016

In November 2015 Griffin Legal published a blog outlining the debt recovery processes in the ACT. In this blog, we touch on some of the challenges faced by our clients in the debt recovery area, and what can be done in order to counteract those challenges.

Challenge

The debtor is disputing the amount owing.

Recommendation       

Communication is key, from when an agreement is first made. A contract must clearly set out the obligations of both parties, and the relevant fees for the goods and/or services to be provided. Continued communication throughout the term of the arrangement is also important, so that all parties understand the amount of the debt, and what additional fees will be incurred. Maintaining frequent communication may prevent confusion in relation to the debt, and in any event creates useful evidence as to the calculation of the debt. Communication may prevent a dispute arising.

Challenge

You cannot locate the debtor, or the debtor is avoiding service of Court documents.

Recommendation

This is a common problem, particularly for stages of proceedings that require personal service, such as the service of an enforcement hearing subpoena. There are ways of locating a debtor if you are not aware of their address, such as by obtaining a skip trace, which is an extensive search undertaken by a process server. However, obtaining a skip trace is expensive, and does not always achieve the desired outcome. We have recently had success in obtaining orders for substituted service by electronic methods such as Facebook. It is important to maintain extensive records of communication methods with debtors, including email addresses, so that orders for substituted service may be obtained if and where necessary.

Challenge

The debtor agrees the amount is owing, but says they can’t pay.

Recommendation     

The lesson here is to commence the debt recovery process early. This means that the chance of recovery in relation to the particular debtor will generally be higher. In the event that a larger debt has accrued, there are enforcement options available such as installment orders and earnings redirection orders which may be available.

What is a nominations committee ?

Thursday, September 08, 2016

A nomination committee’s role is to guide and advise the board of a company on matters relating to the composition, structure and operation of its board, as well as matters relating to the selection of senior executives. The main function of a nomination’s committee is to weaken the traditional strongholds within an organisation, when it comes to selecting board members, and to improve and formalise the process by which board membership is assessed and candidates are identified, screened and referred for election by the members, or appointment directly by the board.

 

What are the functions of a Nomination Committee?

 

The functions of nomination’s committee will vary from company to company, depending on the size and corporate structure of each company. However, general functions of a nomination committee include the following:

  1. Assisting and advising on matters relating to the composition and structure;
  2. Assisting and advising on matters relating to senior executive selection and appointment;
  3. Conducting searches for new board members;
  4. Assessing what the necessary and desirable and competencies are for board members, and the extend to which they are currently represented on the board, taking into account the financial position and strategic direction;
  5. Putting in place succession plans to ensure competencies are maintained and future skill sets identified;
  6. Developing processes for evaluating the performance of the board as well as developing and implementing a process for the development of a board's skill set and experience and overseeing the annual board performance review;
  7. Determining remuneration policies for non-executive directors (ie. CEO); and
  8. Seeking outside advice regarding points (a) to (e) where considered necessary.

 

What are the benefits of a Nomination Committee?

 

A nomination committee ensures that appointments to the board are made at arm’s length, and are not affected by any bias from the current board. This in turn ensures that members are selected taking into account the requirements of the board, as well as the relevant experience, qualifications, and availability of nominees. A nomination committee can also help to ensure that diversity targets for board and executive positions are met.

 

By maintaining impartiality and following a skills matrix approved by the board, the committee ensures that it acts in the best interests of the company, irrespective of any personal or professional loyalties or affiliations.

 

In addition to the benefits that nomination committees have on the selection of board members, there are numerous benefits that these committees have on corporate performance. It has been suggested that since the main board of a company has limited time, committees act as a filter for the board, allowing minor issues to be dealt with at that level and with recommendations of the committee submitted to the Board. Boards are also able to improve their ability to meet their legal obligations, as delegating responsibilities to committees can increase the amount of information that is analysed, digested, and disclosed.

 

Best practice for Nomination’s Committees

 

The nomination’s committee should be appointed by the Board and comprise:

  1. Chair of the Board;
  2. An independent stakeholder; and
  3. An independent stakeholder preferably with the HR or recruitment background (this may vary depending on the type and size of the organisation).

 

It should be noted though that there are no formal requirements for the composition of a nomination’s committee, however they do need an appreciation of the environment in which the company operates.

 

Nomination Committees should have a charter which sets out its role, confers all the necessary powers to it, and determines the frequency that the committee should meet. The charter should reflect the company’s objectives, and culture. It is good practice for the charter to be monitored and reviewed regularly to ensure that it remains relevant to the company’s needs.

 

The board should agree upon a skills matrix that determines the expertise required by the board, and to address any gaps on the board. A skills matrix should take into account:

 

(a)     the nominee’s level of seniority in their workplace;

(b)     previous experience in a director/executive capacity;

(c)     education and qualifications of the nominee;

(d)     the nominee’s standing in the community;

(e)     the industry/professional sector of the nominee, ensuring that the nominee reflects the needs of the Board;

(f)      any conflicts of interest that the nominee may have;

(g)     any other attributes that the nominee believes will benefit the company; and

(h)     knowledge of the environment in which the company operates.

 

The ideal operation of the nomination’s committee should be as follows:

 

(a)   the board determines from time to time the members of the nomination’s committee;

(b)   the board in consultation with members of the nomination’s committee, determines the skills required, always with final approval by the board;

(c)   the nomination committee reviews nominations against the skill sets and;

(i)    if a Board Appointed position, makes a recommendation to the Board; or

(ii)   if an elected position, indicates the preferred person to the members against the skills set sought.

Note: If for example there are two elected positions and four nominees, and the nomination’s committee considers that three of those nominees satisfy the criteria determined by the Board, those three should be put forward by the board board for a vote of the members. However, if only two of the four nominees satisfy the approved criteria in the skills set, then the nomination’s committee (through the board) should make a recommendation to the voting members of the nominees who satisfy the criteria. The chairperson of the Committee should communicate any recommendations of the committee to the board after each meeting within a reasonable period.

Our corporate governance team, led by Partner Peter McGrath can assist to ensure best practice governance policies are adopted by your organisation.

Excessive surchages come at a cost

Friday, September 02, 2016

Following the enactment of the Competition and Consumer Amendment (Payment Surcharges) Act 2016, businesses should be aware of new restrictions in imposing payment surcharges on customers. 

 

This amendment to the Competition and Consumer Act 2010 (Cth) (CCA) essentially bans ‘excessive’ surcharges on credit and debit card payments in transactions. This is intended to limit surcharges on payments to an amount not greater than the actual cost of using the chosen payment method, for example bank fees and terminal costs. 

 

What constitutes an excessive surcharge has been defined in a standard set by the Reserve Bank of Australia (RBA). As a guide, the RBA has determined that accepting a Visa or Mastercard debit transaction may cost a business around 0.5% of the transaction value.  Credit cards will generally have a higher cost, estimated to be around 1 – 1.5% of the cost for a Visa or Mastercard payment. A higher transaction fee than these costs is likely to be deemed an excessive surcharge.

 

What does this mean for businesses?

 

For some businesses, the cost of processing payment is already accounted for in the price they charge consumers for their goods or services.

 

However, for those businesses that do vary costs depending on the payment method used by a consumer, caution is necessary.  The surcharge should not be above the actual cost incurred by the business, as advised by your payment service providers.  In enforcing this new ban, the ACCC is empowered to impose fines of up to $108,000 for listed corporations, $10,800 for a body corporate, and pecuniary penalties of up to $1,164,780 for a body corporate. 

 

There is still time to make changes to the amount your company charges in credit surcharges.  Large businesses are required to comply with this new legislation by 1 September 2016, whilst all others have until 1 September 2017 to ensure compliance.  A large business is one that satisfies two or more of the following thresholds:

 

(a)          consolidated gross revenue for financial year ending 30 June 2015 of $25 million or more;

(b)          value of consolidated gross assets at 30 June 2015 of $12.5 million or more; or

(c)          50 or more employees (whether full time, part time, casual or otherwise) at 30 June 2015. 

 

Whichever category your business falls under, be sure to consider whether your surcharges may be deemed excessive. 

 

What does this mean for consumers?

 

For one thing, it means that your $3.50 coffee probably won’t have an additional 50 cent surcharge when you’re all out of cash.  Nor will you face extortionate surcharges for booking a plane ticket online, though ticket prices may perhaps become higher.  The new ban means that the price you are charged should accurately reflect the real cost associated with your method of payment.

 

The Australian Competition and Consumer Commission (ACCC) will be inviting, and even encouraging, consumers to report complaints of businesses that continue to levy excessive surcharges.

 

Authored by Senior Associate, Carina Zeccola with Paralegal, Alice Lloyd.

IP Australia fee changes commence October 2016 – What do you need to know?

Thursday, August 25, 2016

Earlier this year, IP Australia conducted an extensive review of its fee structure in consultation with various stakeholders. The results of this review are now finalised and IP Australia has announced that new fees will apply from 10 October 2016.

 

The changes to trade mark fees may be significant to current trade mark owners, and companies that have been considering registering a trade mark.

 

Registering a trade mark grants the owner the exclusive right to use, authorise others to use, and prevent others from using, their trade mark in commerce over specific classes of goods and services.

 

Key Changes

 

The key changes to trade mark fees are:

 

1.     Increased application fees – the majority of trade mark application fees have increased by $130 per class, as a way of partially offsetting the removal of the $300 registration fee.

2.     Removal of the registration fee – previously, after an application was assessed a fee of $300 was payable to register the trade mark. There is no longer a fee for registration.

3. Decreased Madrid import application – the Madrid import application facilitates international registration in countries which are signatories to the Madrid Protocol. The fee for a Madrid Application will decrease from $500 to $350 per class (note this is effective from 28 October 2016).

4.    Increased renewal fees – trade marks must be renewed every ten years, the renewal fees will increase from $300 to $400 per class.

5.      Removal of opposition fees – there will no longer be a fee payable to oppose a non-use removal application, or to file a written submission instead of attending an opposition hearing.

 

Overall the changes are positive for current and potential trade mark owners. While the application fee has increased, the removal of the registration fee will decrease the total fees paid to register a trade mark.

 

Additionally, the changes to the opposition fees may make it cheaper and easier to defend against certain applications to remove a trade mark from the register.

 

The full list of IP Australia fee changes can be found at https://www.ipaustralia.gov.au/about-us/news-and-community/official-notice/fee-changes-ip-australia-fee-review-update.

 

How does this effect you?

 

Current trade mark owners should review their trade mark renewal dates. Any trade marks that are due to expire before 9 October 2017 should be renewed before the fee changes take effect.

 

Potential trade mark registrants might consider holding off registering until the new fees take effect. However, if you trade overseas you should also consider utilising the now cheaper Madrid import applications to provide some overseas protection to your brand.

 

Please contact our office if you require assistance with protecting, enforcing or commercialising your intellectual property.

 

Authored by Senior Associate, Carina Zeccola with Law Clerk, Tim Dingwall.

Trade Mark Now the Least of Dick Smith’s Issues After Mite-y Long Battle Ends in Federal Court

Friday, August 19, 2016

On 11 February 2016, the Federal Court handed down its judgment in the case of Dick Smith Investments Pty Ltd v Ramsey [2016] FCA 939. The decision marked the end of the latest chapter in the trade mark battle between Dick Smith’s OzEmite and AussieMite. While this dispute has been in the media through its various stages, the Federal Court’s decision highlights the requirements for the use of registered trade marks.

 

Background

 

Parts of this drawn out saga have featured in the media for well over a decade. In 1999, Dick Smith Investments (DSI) registered the name “OzEmite” as a business name in New South Wales, with the intention of creating an Australian owned and made yeast spread product to rival the now American owned Vegemite. DSI then applied to register OzEmite as a trade mark.

 

In January 2001, Roger Ramsey released his own yeast spread to combat Vegemite, under the name “AussieMite”. Ramsey filed an application in 2011 for the removal of the OzEmite trade mark for non-use, since the trade mark had not been used since its application in 1999. In mid-2012, OzEmite was made commercially available for the first time, but in February 2014, the Registrar of Trade Marks upheld Ramsey’s application to remove the OzEmite trade mark. DSI appealed the removal in the Federal Court.

 

Issues Before the Court

 

Under the Trade Marks Act 1995 (Cth) (the Act), a non-use application may be made to remove a trade mark, if that trade mark has remained registered continuously for a period of 3 years, and has not been used during Australia in that period (the statutory period). The two issues before the Court were:

  1. Whether DSI used the OzeMite trade mark in Australia during the statutory period; and
  2. If the trade mark was not used during the statutory period, whether the OzeMite trade mark was not used because there were circumstances that were an obstacle to the use of the trade mark.

DSI argued that the trade mark had been used during the statutory period for the purposes of the Act, during what they described as two “pre-launch publicity” instances. While the Judge doubted that the term “pre-launch publicity” was accurate, she agreed with this argument, stating that the purpose of the publicity “was to revive, if not maintain, interest in the OzeMite product.”

 

The Judge also found that DSI showed “an objectively ascertainable commitment” to producing a “vendible” product which would carry the mark, and that OzEmite remained under development during the statutory period.

 

With regard to the second issue of whether there was an obstacle to the use of the trade mark, DSI claimed that they suffered setbacks due to difficulty in sourcing “spent brewer’s yeast,” a key ingredient in vegemite and other yeast spreads. The Judge said in response to this “I am satisfied that for some time the Dick Smith companies did have trouble finding spent brewer’s yeast, but I am not satisfied that that difficulty presented itself as an obstacle to the use of the mark during the statutory period.” The Judge continued on to state that to qualify as an obstacle within (the meaning of the Trade Marks Act), the circumstances had to meet three conditions:

  • First, they had to be “of a trading nature”.
  • Secondly, they had to “arise from or comprise events external to the registered owner in the sense of not having been brought about by the voluntary act of the owner”; and
  • Thirdly, there must be events “capable of disrupting trade in the area of commercial activity in which goods bearing the registered owner’s mark are traded”.

 

Although the objective of creating a product similar in taste and texture to Vegemite was of fundamental importance to OzEmite, the obstacle created did not arise from or comprise events that were external to the owner or independent of its will. While DSI was not successful in establishing that there was a sufficient obstacle, they were still successful in overturning the removal of the trade mark by establishing sufficient use of the trade mark during the statutory period.

 

As this case shows, the law of trade marks can be difficult to navigate, and disputes over trade marks can be costly and time consuming. Our Intellectual Property team has the knowledge and expertise to assist businesses, government, and not for profits in making trade mark applications a cost-effective and smooth process.

Board Meeting Minutes – Take a Minute to Find Out Your Obligations

Thursday, August 11, 2016

 

Minutes are a physical record of decisions made and actions agreed upon in a meeting, and are often relied upon for future reference. The Corporations Act 2001 (Cth) (the Act) states that “a minute that is so recorded and signed is evidence of the proceeding, resolution or declaration to which it relates, unless the contrary is proved”. For this reason, minutes must be accurate, informative and easy to navigate, as they can provide crucial support in the event of an audit or future legal proceedings.

 

Requirements for a Company

 

The Act stipulates requirements for organisations in regards to recording and signing minutes. These requirements include:

1.         A company must keep minute books which it records within one month.

(a) proceedings and resolutions of meetings of the company’s directors and members;

(b) resolutions passed by directors or members without a meeting; and

(c) in the case of a company with only one director, the making of declarations by the director.

2.         The company must ensure that minutes of a meeting are signed within a reasonable time after the meeting by 1 of the following:

(a) the chair of the meeting; or

(b) the chair of the next meeting.

 

Requirements for Incorporated Associations

 

Similar rules apply for incorporated associations in the ACT, pursuant to the Associations Incorporation Act 1991 (ACT) (Associations Act) and the Associations Incorporation Regulation 1991 (ACT) (the Regulations). The model rules under the Associations Act require the secretary of an association to keep minutes of:

 

(a) all elections and appointments of office-bearers and ordinary committee members;

 

(b) the names of members of the committee present at a committee meeting or general meeting; and

 

(c) all proceedings at committee meetings and general meetings.

The minutes of proceedings at a meeting must be signed off either by the person presiding at a meeting or by the person presiding at the next meeting.

 

Items to Include in Minutes

 

Minutes of meetings should preferably include the following information:

  • Name of the organisation
  • Date, time and location of the meeting
  • Confirmation that a quorum was present
  • List of people present/apologies
  • Any resolutions passed or delegated
  • A record of what actions were taken and what was accomplished, not a record of conversations.

 

Minutes should also contain a statement confirming if the previous meetings minutes have been read and approved. When the meeting agrees that the minutes are correct and a true record of the meeting, the Chair should sign the minute, as well as date and initial each page. Once this has been completed, no more alterations can be made to the minutes.

 

 

To ensure compliance with the legislative requirements, it is good practice for corporations to have in their by-laws a policy which sets out what information must be included in their minutes and how to record them. A policy should also be maintained which among other things, sets out:

  • how long the minutes should be kept
  • who is responsible for the minutes
  • the timing for completion and distribution of minutes
  • processes to ensure compliance with the relevant legislation for taking, keeping, and approving financials.

Our Corporate and Commercial Advisory Team can assist you with ensuring that your legal obligations are met with keeping minutes and help you with implementing policies to do so, as well as with your other governance obligations under the Corporations and the Associations Acts.

Estate Planning for Foreign Assets

Thursday, August 04, 2016

It is now becoming more common for people who live in Australia to have assets overseas. If you own assets overseas it is important to be aware that each jurisdiction has its own legal system and tax laws. You should not assume that the succession laws and tax regimes you are familiar with in Australia will apply in relation to any overseas assets you own.

As a general rule, we recommend seeking specialist legal and financial advice from professionals who have an understanding of the succession and taxation laws in the country in which the asset is located.

Disposing of foreign assets

It is an option to dispose of your foreign assets prior to death and send the proceeds to Australia or to another jurisdiction. However, you should consider the time available and the financial implications for this strategy, for example adverse taxation consequences (such as stamp duty, capital gains tax and foreign investment tax) and currency exchange rates.

Separate Wills

Assuming that you do not plan to dispose of your overseas assets prior to your death, it is generally recommended that you have a separate Will in the relevant jurisdiction that deals with the overseas assets. In other words, you would have an Australian Will to deal with your estate not including your overseas assets and a second Will in an overseas jurisdiction to deal with the distribution of your overseas assets and which complies with the relevant laws in that jurisdiction. This will allow you to choose an appropriate executor in that jurisdiction to deal with issues such as the local procedures for probate or administration of estate and any taxation implications (for example whether the foreign country imposes an inheritance tax).

Summary

Testamentary laws can be complex, and are further complicated by the interrelation of foreign legal systems and taxation laws. As a testator with foreign assets, the starting point for you is to:

·         be aware that different laws will apply to your assets held in foreign jurisdictions;

·         make your lawyer and financial advisor aware of these assets and where the assets are located; and

·         make your lawyer and financial advisor aware of what your intentions are for the assets in the event of your death.

We recommend you seek specialist legal and financial advice from professionals who have an understanding of the succession and taxation laws in the country in which the asset is located. Your lawyer and financial advisor will then be able to give you specific advice about your estate planning options based on your individual circumstances.

Our estate planning lawyers have the knowledge to guide you in creating an estate plan that suits your individual needs. If you would like to discuss your estate plan, please give us a call.

Brumbies in Crisis

Thursday, August 04, 2016

At what point does it become obvious that an organisation is in crisis and that urgent action is required.

The litany of governance issues which have beset the Brumbies organisation in the last 12 months reads like a fiction story.  That these are real events in the history of a great organisation is a demonstration of an abject failure of governance by the Board, led by the Chair.

For the Chair, it is time to accept responsibility and for the good of the game, and as the leader of the organisation, to step down.

It is with some distress that I have come to this point and I should state that I do so with some background in the Brumbies and Australian Rugby generally.  My background is well known as a player, administrator at state, national and international level and is set out below.

With this background in mind, my opinion of the governance failures (in no order) are summarised as follows:

  1. Seeming inability to control the actions of the CEO;
  2. Referral of the KPMG report regarding the activities of the organisation with scan regard to the Chair's membership of the Union's Finance Committee throughout the period covered by the report. (Question - if he didn't know about the deal(s) at the time then why not? Did he ask?? If he did ask and was not satisfied with the answers what was his response and why did he remain a member of the committee - this has never been addressed or answered to the satisfaction of members and stakeholders);
  3. Appointment by the Chair of a former professional associate of the Chair to a position on the Finance Committee (I am told as Chair of the committee) without reference to the members of the Board - In light of 2 above this constitutes a real or perceived conflict of interest;
  4. Absence of organisational integrity associated with the referral of the report to the AFP which was made without the prior referral to former long standing officials of the organisation (and especially as they had negotiated the deals) or UC. I am advised, by the parties that they were willing to answer any questions had they been put to them. The pre-emptive referral of the report fails the fairness test at any level and I suspect will fail scrutiny of the report itself;
  5. Breakdown of stakeholder relations throughout the organisation most especially with UC;
  6. Breakdown in the relationship with the ACT Government and its officials which have long supported the organisation no matter the political party in power;
  7. Disaffected members at all levels of the organisation (season tickets holders of long standing, Foundation Members and generally those attending games;
  8. Poor communication to stakeholder groups by the Chair;
  9. Chair overseas on holidays at a critical time for the organisation both on and off-field when leadership was critical;
  10. Void in leadership especially by the Chair during critical time when leadership was required by the members and the broader stakeholder group;
  11. Overseeing the shambolic negotiations regarding the termination of the CEO;
  12. The retention of a Director for many months who had been subject to comments from a Judge of the Supreme Court as to his honesty and who was the Director of 2 failed companies owing money to the ATO and for employee superannuation (since recently resigned after much resistance from the Chair);
  13. Formation of a Nominations Committee without transparent Terms of Reference and by appointing members with little if any experience in the administration of the game or high performance as it relates to Rugby and proceeding without proper, if any, communication with his Board;
  14. Leaving out long standing partners to "carry the can" by not negotiating a complete end to the legal dispute with the CEO (which continues) to the on-going cost of those who and which remain involved. This on-going dispute continues to cause damage to the relations between the parties involved;
  15. The Union continues to incur legal costs associated with the dispute as a direct consequence of the settlement strategy adopted by the Chair and the Board which did not finalise all the outstanding issues being limited to a resolution of the dispute between the Union and the former CEO;
  16. The creation of Brumbies TV at considerable cost to the Union with an apparent failure of the assumptions of the business plan to support the additional expenditure;
  17. The failure to commence the recruitment process for the CEO in a timely manner. The delay indicates the absence of understanding by the Board relating to the critical times in sponsors budgetary processes and will create an enormous challenge to an incoming CEO;
  18. An organisation which fails to apply a values standard to decisions - there is no Values Statement on the Brumbies Home Page - it seems obvious that decisions are made without reference to the values long important to the organisation and its standing in the community;
  19. In spite of additional revenue of in excess of $1.4m received from the ARU, it appears the budget projections will not be achieved and again the organisation will most likely post a deficit. This will occur in spite of having successful on-field performance which included a home qualifying final.

The HPU, Community Rugby, coaching and development staff have continued to deliver in what must have been difficult circumstances.  The Brumbies on-field performance is remarkable considering what was going on around the organisation.  They should all be commended. 

I can summarise the governance and organisational breakdown in one statement –

“The Brumbies do not treat those associated with the organisation in the manner they have been treated.”

All of this should also be seen in the broader context of the crisis of rugby in this country. The current funding model is not sustainable. This is generally “code” for less funding from and more control by the governing body (the ARU). The “code” however generally excludes NSW and Queensland from the equation – we will see.

The ARU are in the process of either taking control or encouraging private investment.  The absence of a sponsor for the June Test series against the English and the cessation of the sponsorship deal by Asteron Life for the Super Competition at the end of the current season, will place further pressures on the ability of the ARU to fund the Super Unions.

Yet the Brumbies remain in a stalemate with an organisation (UC) and other stakeholders which if not resolved and relationships not re-established will result in the loss of control to the ARU as the only available option.

It need not be the case.

I understand it has been made very clear to the Chair some months ago that stakeholders have lost confidence in his ability to lead the organisation.  While he stays, crisis will continue and will not be resolved.  The actions of the Chair of the Essendon Football Club are offered as an example and who for the good of the club resigned. I implore the current Chair of the Brumbies to follow this example and go – .

 

Peter J McGrath

4 August 2016

 

For the record the writer provides the following:

Director the ACT & SNSW Rugby Union 1994 to 2005 (Chairman 1999 to 2005);

Director of the Australian Rugby Union 2005 to 2012 (Chairman 2007 to 2012)

Member of the Executive Committee of SANZAR 2006 to 2012 (Chair 2006/2007 and 2012)

Member of the iRB (now World Rugby) Council and Executive Committee (2008 to 2012)

                   

               
       

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