AGS Governance

Proposed Changes to the Governance Arrangements of the AGS

Draft Constitution

A draft constitution that supports the creation of a not-for-profit company limited by guarantee: Australia Geomechanics Society Limited

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Preamble

The Australian Geomechanics Society (AGS) has a rich and extensive history of providing technical support to the Australian geotechnical and engineering geology professions, and representation to our affiliated International Societies: the International Society for Soil Mechanics and Geotechnical Engineering (ISSMGE), the International Association of Engineering Geology and the Environment (IAEG), and the International Society for Rock Mechanics and Rock Engineering (ISRM). A detailed exposition of this history is presented in the 50th Anniversary Commemorative Volume of Australian Geomechanics published in 2020 and available on the AGS website.

For the last 25 years, the AGS has consistently increased its membership numbers, implemented the production of four issues of the Australian Geomechanics journal per year, held around 1,000 professional development events across six Australian chapters, convened over 100 chapter symposia, organised a regional conference with the New Zealand Geotechnical Society every four years, hosted major international conferences in 2000, 2014, 2016, and 2022, and delivered professional training courses to its members, on a variety of topics across the country. The AGS has done this largely by operating autonomously and whilst steadily consolidating its own financial position. By any measure, the AGS is a success, and exemplar amongst professional engineering technical societies in Australia and across the world.

To most members it would seem that the AGS must be operating according to a well-established and stable governance model. However, the smaller number of members who have voluntarily participated at Chapter Committee level, and in particular, served on the National Committee, would be aware (to various degrees) that the circumstances under which the AGS has been operating are inherently problematic and not sustainable. This statement does not imply in any way that the governance of the AGS has not been carried out with the utmost honesty and integrity; rather, it recognises that the governance arrangements under which the AGS has been operating do not have a sound legislative basis, with the consequence that members of the AGS Executive are more legally exposed than office bearers of a volunteer organisation should be.

This paper provides a summary of the current governance arrangements of the AGS, the historical reasons for them, and an explanation for why the governance model needs to change. It also provides an outline of the options for change, and the benefits and drawbacks of each.

A brief history of AGS governance

The following points present a brief history of the AGS governance arrangements that have resulted in the present situation.

What is an unincorporated society?

The Australian Charities and Not-for-profits Commission (ACNC) sets out the legal powers and obligations of an unincorporated society (association). Significantly for the AGS, unlike an incorporated structure, an unincorporated association is not a separate legal entity from its members, and as such, it cannot enter into contracts in its own name, or own land, or employ people, sue or be sued. The members of an unincorporated association do things on behalf of the association, and the members may each have individual legal liability for the association’s debts and defaults, something which can lead to legal risk for those members.

Legal protections for the AGS office-bearers and its members are in-principle derived through its association with EA, provided their activities are carried out with a prescribed level of compliance with a relatively restrictive set of rules, as described in the Governance Documents of EA.

Accounts of the relationship between AGS and EA in the late 20th Century are now relatively few, and there is nothing to suggest that the AGS did not operate and comply with the rules set out by EA in that period.

The Engineers Australia General Regulations of 2016 documented that at that time, 11 of 27 technical societies of Engineers Australia were incorporated:

Unincorporated
Australian Composite Structures Society
Australian Cost Engineering Society – Perth Chapter
Australian Earthquake Engineering Society
Australasian Fluid & Thermal Engineering Society
Australian Geomechanics Society
Australian Society for Bulk Solids Handling
Australian Society for Defence Engineering
Australian Tunnelling Society
Mine Subsidence Technological Society
Mining Electrical & Mining Mechanical Engineering Society
Railway Technical Society of Australasia
Railway Technical Society of Australasia – CORE
Risk Engineering Society
Society of Fire Safety
Society for Sustainability and Environmental Engineering Systems
Engineering Society of Australia
Incorporated
Asset Management Council Limited
Australian Association for Engineering Education
Australian Particle Technology Society
The Institute of Engineers Australia – Australasian Particle Technology Society
Institute of Industrial Engineers
Institute of Public Works Engineering Australasia Limited
Institute of Materials Engineering Australasia Ltd
Royal Aeronautical Society Australian Division Inc
Society for Building Services Engineering
The Institution of Engineers Aust Society for Engineering in Agriculture
The Electric Energy Society of Australia Incorporated
The Electromagnetic Compatibility Society of Australia

It is believed that all of the currently incorporated technical societies of EA established their incorporation prior to joining EA. Regardless, there is no established or recognised pathway for an unincorporated technical society of EA to become incorporated.

The available options

From the preceding summary, it is clear that governance arrangements for the AGS cannot remain the way they are. That is, we cannot continue to operate according to the constitution of an incorporated society when our formal legal status is that of an unincorporated society. From an internal AGS review of governance supplemented by legal advice, the available options can be summarised as follows:

Although the preceding summary implies that the new governance structure should be that of an incorporated society, that is not the only option for a legally-established, self-determining governance structure that would give the AGS the flexibility to continue its current style of operation and service to its members. The alternative to incorporation would be to register the AGS as a not-for-profit company, limited by guarantee under the Australian Securities and Investments Commission (ASIC). The following sections explore the implications and consequences of each option.

However, before proceeding, it is very important to emphasise that the overwhelming motivation for the change in governance being proposed is NOT to end our relationship with EA, but to move to a legally sanctioned governance arrangement that would formalise the flexible operating arrangements that have made the AGS so successful, without its office bearers carrying unnecessary risk.

The option to adopt EA’s constitution

As noted above, observance of our legal status as an unincorporated society would place serious fundamental restrictions on the ability of AGS to operate flexibly, and with autonomy. Significantly:

The obligations of the AGS, which should strictly be followed in return for legal protection from EA, are spelled out in the EA By-laws (2015), the Engineers Australia General Regulations (2019) and the Technical Societies of Engineers Australia Guidelines & Regulations (Issue: 1 Revision: 7 May 2006). These obligations include:

The AGS has complied with some of these obligations, and has not complied with others, due either to inertia at the time of introduction, lack of awareness, or perceived burden. For their part, EA has allowed the AGS to operate as it has without any formal warning or sanction, which has included transferring membership registration fees to an AGS bank account since 2005. But for the AGS this situation includes the possibility that EA might at any time cease to be satisfied with the arrangement, whilst being uncertain of the extent to which its office bearers and members are legally protected or exposed. In light of the AGS not being in strict compliance with the noted obligations, and in light of the AGS undertaking its activities with almost complete independence, it has never been ascertained whether the legal protections of EA would be extended to the AGS and its members (some of whom are not members of EA), in part or in full, should the need arise.

So, given the obligations of the unincorporated AGS to EA listed above, an obvious question is why would the AGS not be able to fully meet the obligations set out by EA? Collectively these obligations represent a substantial burden of reporting and compliance on the volunteers who make up the AGS National Committee and the Chapter Committees.

More significant than the explicit burden of reporting and compliance – much of which the AGS will be legally obligated to complete if a company limited by guarantee is created – is the implicit requirement that AGS initiatives and activities will be subject to direction, approval and control from EA. A consequence of operating strictly as an unincorporated society under EA’s protection is that the AGS would be obliged to rely on EA to sign contracts. This means that EA could refuse to make financial arrangements for any AGS activity that it didn’t sanction. An example of where this is likely to become problematic is through the requirement to liaise with EA in setting its agenda, and to show how the AGS proposes to carry out its functions consistently with EA’s strategic goals. Prior to becoming more independent in the early 2000s, and later on when the AGS engaged with EA for discrete events, the service provided by EA has been inconsistent, and sometimes influenced by personnel changes or an un-shared sense of urgency in supporting AGS objectives.

On one occasion in the last 15 years, EA implemented a policy that its Technical Societies should hold all events at EA venues. The AGS leadership did not believe this restriction was in the best interests of its members so did not comply. Whilst the AGS and EA are generally in pursuit of common goals, in many respects the organisations have very different ideas on how to reach them.

The capacity of the AGS to deliver for its members is evident in the experience of running major international conferences. For the 20th International Conference on Soil Mechanics and Geotechnical Engineering (ICSMGE) in 2021, the AGS, with appropriate due diligence, sought quotes from 5 different PCOs and organised and under-wrote the event independently. The conference was an overwhelming success, despite a period of considerable financial risk to the AGS associated with Covid, a related dependence upon international attendees, a year-long delay, and a significant change to a hybrid mode of presentation.

The alternatives

The alternatives to compliance with EA’s expectations of an unincorporated society all involve a change of status to a legally-protected, self-determining, not-for-profit structure. This could be done with or without the blessing and ideological support of EA, although a new and enduring partnership with EA is the preferred option.

Although for more than 20 years the envisioned arrangement was for the AGS to become incorporated, a registered not-for-profit company limited by guarantee would also provide a suitable governance model.

These options have various advantages and disadvantages, but a significant distinction is that the incorporation framework is state-based, meaning that were the AGS to incorporate, it would need to be in one state, with consequent implications (both real and perceived) for state-based Chapters. Registration as an Australian company limited by guarantee has no equivalent limitation.

To avoid any doubt, while some new operational costs would be expected for the society to comply with legislative requirements, and our national leadership would be expected to attend a one or two day training course relating to governance, the AGS is in a sound financial position. No increase would be expected to membership fees in relation to the formation of a company limited by guarantee.

The next steps

The AGS National leadership has decided that our current practices are unsustainable and that a new governance model is required, by either transitioning back to being a compliant unincorporated Technical Society of EA, or by changing our status to that of an independent entity in the form of a not-for-profit company limited by guarantee.

In the coming months, you will be asked to cast a vote. A change from our unincorporated status will only proceed if more than 75% of the members who vote, support the proposed change. This document provides a general background and context to the proposed change, but more information (including a proposed constitution for the proposed new entity) will be provided prior to the vote being held. You are encouraged to read it carefully before making a decision.

In the meantime, the AGS will engage with EA in pursuit of their endorsement for the creation of a new company limited by guarantee, and in pursuit of a sustained relationship as an affiliated technical society. It is noted again that the governance bylaws of EA contain provisions for such an arrangement. In the event that the proposed change is supported by the AGS membership, but opposed by EA, the AGS plans to proceed regardless, still with a hope to resolve whatever disagreement may exist.

Credits:

This discussion paper is based on an internal AGS review first prepared by Stephen Fityus in 2018 and updated by him recently. It has been reviewed and endorsed by the following past and current leaders of the Australian Geomechanics Society:

9 August 2024.