QLD: Secret ballots can’t be used to dodge strata democracy

This article about secret ballots has been supplied by Frank Higginson, Hynes Legal.

Three things to know about secret ballots:

1. Secret ballots were created to protect the privacy of voters
2. The Commissioner’s Office does not like dodgy voting practices
3. Poll votes are often forgotten about in contested open ballots

An introduction to secret ballots

Secret ballots were introduced in strata meetings in 2003 to protect the identity of voters. Before then, you could ring the body corporate manager either before a resolution or after the meeting and find out which way people had voted.

In 2003, specific provisions were introduced that made it compulsory to decide certain decisions by secret ballot. The clearest statutory example is the decision to enter into new management rights agreements or to vary management rights agreements to add further option term.

Bodies corporate also have the flexibility to resolve that other types of decisions must be made by secret ballot, and those matters can be whatever the body corporate chooses. There is one building we are aware of that has made every motion at every general meeting a secret ballot, including confirmation of the minutes of the last meeting. You can imagine how long those meetings go for!

Voter protection

The key aspect of secret ballots is that they’re designed to protect the identity of the voter.

But if someone wants to go to a general meeting and vote openly from the floor, even though it is a secret ballot, they can do that. That’s the voter waiving their right to secrecy. If they choose to do that, then so be it.

Of course, the returning officer may still want a ballot paper completed, but if someone wants to declare their vote openly that is up to them. It’s not then for other people to disqualify that very ‘open’ voter from exercising their right to cast their vote publicly.

Secret ballots and electronic voting

Another consideration is bodies corporate now have a choice as to whether they use electronic voting. If you are using electronic voting, it’s important to make sure that the software continues to protect the identity of voters.

Previously there was a fairly foolproof system where you’d put a ballot paper inside an envelope, then put that inside another envelope, and then you’d send that back to the returning officer. The returning officer would check whether the voter was financial, then pull out the inside envelope and put that in a box with everyone else’s votes, and then count those unidentifiable voting papers. That was very secure. Electronic voting needs to be just as secure.

Fraud on the power

Another recent issue is people trying to use secret ballots in a way that is called a ‘fraud on the power.’

The easiest example is an ordinary resolution. Ordinary resolutions are usually decided on a one-vote per person basis: 15 votes for, 14 against – the resolution is passed.

But people can call for a poll vote. And if that’s called for with an ordinary resolution, then the decision is going to be made based on the lot entitlements for and against the motion.

In a building where all of the lots are one entitlement each, it doesn’t really make any difference. But in a building where the entitlements are substantially different, the lots with the higher entitlements effectively have a higher voting weight on a poll basis. It is not quite gerrymander, but as close as you get in strataland.

And before anyone asks – you cannot do this on votes cast by secret ballot. To do so you would need to know the entitlements which could reveal the identity of the voters via the entitlements for the individual lots.

There was a recent case that went before the Commissioner’s Office where a motion was put up by secret ballot. The lines in the sand were pretty clear in terms of which way people were going to vote before that agenda was sent, and the secret ballot would have meant option A was chosen purely on the lot numbers for and against. The secret ballot would have prevented the proponents of Option B from using a poll vote, which would have meant that the decision would have been the other way because the opponents had higher aggregate lot entitlements.

The adjudicator refused the right to use a secret ballot in this instance, because the use of it to defeat option B was a fraud on the power. This was not what secret ballots were designed to do. They were created to protect the identity of the voters – not to defeat the right to call for a poll vote on a motion that could otherwise be considered openly.

What you can do

There are some other tweaks that can happen between the different Modules with secret ballots. If you need any help with managing any secret ballot issue, please get in touch.

This content relates to buildings regulated by the Body Corporate and Community Management Act 1997.

Frank Higginson
E: [email protected]
P: 07 3193 0500
W: Hynes Legal

This post appears in Strata News #717.

This article has been republished with permission from the author and first appeared on the Hynes Legal website.

Read more:

• QLD: Q&A Can Signatures on a Secret Ballot be Kept Secret?
• QLD: Proxies versus representatives

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