The Price of Liberty is Eternal Vigilance
Administration Seminar
ASC
Coffs Harbour
Mr John Boyle
Business Services Manager
Presentation Overview
1.
2.
3.
4.
5.
Results of Compliance review
Trustees
Donations
Mortality Payments
Questions
Compliance Review
• All RSL sub-Branches and their subsidiaries need to be
compliant with the Constitution of RSL NSW & both Federal
and State Acts.
• An RSL Audit team consisting of CFO, Miss Annette Mulliner
OAM, Julian Waetford and myself has been conducting audits
of RSL sub-Branch’s and their subsidiaries.
• These audits will cover not only financial information but all
activities of the RSL sub-Branch or subsidiary.
• The audit team visited 54 RSL sub-Branches last year.
Compliance Review
• Introduce Julian Waetford
Trustees
A sub-Branch Trustees’ duties arise out of
several sources, including the Trust instrument
itself, The RSL NSW Constitution, By-laws and
Regulations, Common Law and Acts of
Parliament (The Trustee Act).
Trustees (cont.)
A Trustee is an honoured person in a sub-Branch. He or she
is generally appointed by their fellow members because they
see them as a custodian of their interest in their sub-Branch
and a responsible person. The Officers and Committee of
the sub-Branch should keep their Trustees fully informed as
to any transactions affecting their Trusteeship, so that they
can perform their duties in an efficient manner.
Trustees (cont.)
State Branch and State Council continue to experience
concern that many sub-Branches and members of the
League are apt to view the provisions of the
Constitution dealing with Trustees and property
namely Clause 34 and its associated By-Laws and
Regulations, with a degree of indifference, and as a
result tend to by-pass the requirements, to the
detriment of their members.
Trusteeship
The formal definition of a Trustee is that he is a person
entrusted with property of another and who is capable and
possessed of natural ability to execute a Trust and to carry
out his duties in a prudent matter similar to how he would
act if the property belonged to him personally. A Trust is an
equitable obligation binding a person (who is called the
Trustee) to deal with property over which he has control
(which is called Trust Property) for the benefit of persons
(who are called beneficiaries) of whom he may himself be
one, and any one of whom may enforce the obligation.
Property & Authority
• Property includes real and personal property, and any
estate or interest in any property, real or personal and any
debt, and anything in action, and any claim or demand,
and any other right or interest, whether in possession or
not.
• The Authority of a sub-Branch Trustee comes from the
appointment of a Trustee as a financial member of the
sub-Branch who shall hold office as a Trustee in
accordance with the Constitution of The Returned and
Services League of Australia (New South Wales Branch).
Appointment of a Trustee (cont.)
• Clause 34 of the Constitution requires that every subBranch shall appoint three financial members as Trustees,
in whom all real and personal property shall vest and they
shall be empowered to prosecute, sue or maintain any
legal action necessary against any person or corporation
in respect of sub-Branch property.
• Sub-Branch Trustees are initially nominated at a subBranch General Meeting and their names are recorded in
a ‘Deed of Appointment’ which embodies a Declaration
of Trust, setting out the fact, amongst other things that the
Trustees hold real and personal property on behalf of the
sub-Branch.
Appointment of a Trustee (cont.)
• To give effect to the nomination, the sub-Branch
President is empowered under sub Clauses 34.1 (d) to
appoint new or additional Trustee/s as provided by the
provisions of Section 6 and 7 of the Trustees Act (as
amended) by Deed (Deed of Appointment). It is
sufficient then that the President will execute a Deed of
Appointment which must then be registered where real
estate is involved with the Registrar General so that the
name of the new Trustees can be entered on the Title
Deeds of any real estate under Torrens Title.
Appointment of a Trustee (cont.)
• Where Trustees of a sub-Branch hold personal property
only and not any real estate, it would be necessary to
complete a ‘Deed of Appointment’ for personal property
(available from State Branch). Sections 6 and 7 of the
Trustee Act require that any Deed of Appointment be
registered in the General Register of Deeds.
• The actual procedure of the registration of a new
Trustee/s should be undertaken by a solicitor.
Replacement of Trustee
• Where a Trustee is to be replaced it will be necessary that
a new Trustee be appointed as provided for in the subSections of Clause 34 in the Constitution. This must be
done at a General Meeting of which fourteen (14) days
notice has been given, specifying that a new Trustee is to
be appointed.
• So that a solicitor may proceed to stamping the Deed of
Appointment and registration thereof, in the case of
Torrens Title land, the Stamp Duties Office requires to
sight a stamped copy of the original Deed of Appointment
to which the appointment relates.
Trustee Powers
Apart from the powers contained in the Trust instrument, a
Trustee has certain statutory and implied powers. Some of
these powers are exercisable by the Trustee in his discretion
(providing such is not negated by the Trust instrument) and
other powers may only be exercised with approval of State
Council e.g., in equity it would be a breach of Trust to sell
Trust assets without State Council approval as provided for
under sub Clause 34.4.
Relationship with sub-Branch
Management Committee
Sub-Branch Trustees will have the right to attend meetings
of the sub-Branch Committee and to speak on issues
affecting their trusteeship only. A sub-Branch Trustee will
not have a right to vote, in their capacity as trustee at any
sub-Branch Committee meetings and their attendance will
not form part of any required quorum.
The appointment of a Member as a sub-Branch Trustee will
not otherwise affect their rights and obligations as a
Member.
Duties of a Trustee
• to keep the Committee and members of the sub-Branch
regularly and fully informed on all matters arising for
consideration from time to time, affecting all or any
property the subject of the trust.
• not to breach the trust vested in him.
• not to breach the document (such as the RSL NSW
Constitution) under which the Trust was created.
• to obey the terms of the Trust.
• to comply with the requirements of the NSW Trustee Act
1925.
• to act so to prevent a breach of Trust.
Duties of a Trustee (cont.)
• under sub Clause 34.3 the Trustees must keep detailed
accounts of transactions relating to funds and property
under the Trustee control (such as real estate vested in
them for the sub-Branch).
• Trustees must ensure the Trust property, including all
original documents relating to such property are placed in
a state of security.
• The Trust property must be in the joint control of all the
Trustees and not left in the possession of one or only
some of them. Bearer bonds, for instances, should be
deposited at a Bank in the joint names of the Trustees.
Duties of a Trustee (cont.)
• They are required to ensure property is properly
maintained, properly insured and they may be called on to
control or sell or convert property into money and invest
the proceeds in accordance with the requirements of the
Trustee Act.
• A duty to exercise the powers of the trust in the best
interests of all present and future beneficiaries of the trust.
• A duty to invest funds in investments that are not
speculative or hazardous.
• A duty to act impartially towards beneficiaries and
between different classes of beneficiaries.
• A duty to take advice.
Duties of a Trustee (cont.)
Trustee powers and duties are
specifically set out under Clause 34
of the RSL NSW Constitution &
Chapter 1 of the RSL NSW
Property and Finance Regulation
Liability of sub-Branch Trustees
Any sub-Branch Trustee or other sub-Branch
Officer, who is in breach of clause 34 of the RSL
NSW Constitution will be liable for the loss
suffered by the sub-Branch and may be sued by
RSL NSW on behalf of the sub-Branch for any
loss or damage suffered or incurred by the subBranch.
RSL Custodian Pty Ltd
• Sub Clause 34.1 (a) was formed to allow sub-Branches to
avail themselves of the complete security in relation to
Trusteeship of property by the RSL Custodian Pty Ltd.
• RSL Custodian Pty Ltd is designed to relieve subBranches of what can be costly repetition of legal
expenses in executing Memorandum or Transfer of land
vested in one set of Trustees to another due to
death, retirement or removal etc., of one or more
members, an occurrence which is brought about from
time to time, sometimes frequently. The legal position
becomes even more complex and involved where a
member of the Trust leaves the district leaving no
forwarding address or goes abroad and fails to return.
RSL Custodian Pty Ltd (cont.)
• Where Trusteeship is accepted by RSL Custodian Pty Ltd
IT DOES NOT DEPRIVE the sub-Branch of the control
of its property in any way and the sub-Branch can at any
time, should it desire, ask the RSL Custodian Pty Ltd to
return such Trusteeship to the sub-Branch Trustees. It
makes no difference whether Title is vested in sub-Branch
Trustees or RSL Custodian Pty Ltd, should a sub-Branch
wish to lease, mortgage or dispose of its land or buildings,
it is still necessary in the first instance to obtain the prior
consent of State Council or State Executive.
•
RSL Custodian Pty Ltd (cont.)
The administrative procedure for the Transfer of
Trusteeship of sub-Branch real property from the
sub-Branch Trustees to RSL Custodian Pty Ltd
is clearly detailed in Chapter 1 Item 1.57 – 66 of
the RSL NSW Property and Finance Regulation .
Trustee Conclusion
• The Trustee Act places obligations on the Trustee as does
Common Law and the Constitution of The Returned and
Services League of Australia (New South Wales Branch).
To generalise a Trustee in discharging his duties must
observe all reasonable diligence in order to escape
liability for any loss sustained by the Trust estate.
• The degree of diligence is that which a prudent man of
business would exercise in dealing with his own private
affairs. It is his duty to satisfy himself as to what is
happening to Trust property.
Trustee Conclusion (cont.)
• Trustees under the provisions of the State Branch
Constitution are obliged to ensure no property vested in
their names (including Women’s Auxiliary, Youth Clubs
or any other body formed under the Constitution) is sold,
transferred, conveyed, alienated, mortgaged, leased or
given to any person or corporation without the prior
written consent of State Council being first obtained.
• Finally, what State Branch is concerned with is that subBranch members receive from their Trustees the standard
of care and respect for their interests they are entitled to
under the law.
Donation Policy
• By- Law 21 and 22
Where can RSL sub-Branches
Donate
• All Donations must meet the ATO’s
requirement that it be for the
PREDOMINANT PURPOSE that the
League holds its Charity Status.
• The Aims and Objects of The Returned
and Services League of Australia (New
South Wales Branch)
Where can RSL sub-Branches
Donate
• By Law 22 of the RSL NSW Constitution
sets out general considerations for subBranches and subsidiaries as to Donation
Policy.
• State Branch and sub-Branches are
required to administer RSL affairs and
preserve and protect RSL funds and
property in compliance with the terms of
the Constitution. (ATO Deed)
Where can RSL sub-Branches
Donate (cont.)
• Sub-Branch Trustees and Management
Committees have an obligation to ensure
proper accountability of all members’
funds. The application of those funds must
be made in accordance with the
Constitution, By-Laws and Regulations in
furthering the objects of the League.
(ATO Deed and the reason why RSL NSW
& its sub-Branches have Charitable status)
Donation Tiers
Due to the ATO Deed’s requirement that
Donations must meet the Predominant
Purpose for which RSL NSW and its subBranches are a charity, RSL NSW State
Council has determined the approved
donations and the percentage maximum and
minimum sub-Branches are allowed to
donate to each tier.
Percentage of Income to be
Donated
• The term income for these purposes
means the net income after reasonable
expenses have been deducted from the
sub-Branch’s gross income.
• In determining the percentage of income a
sub-Branch may donate as per the By-Law
the following table below applies.
Mortality Payments
• The Constitution provides that one of the
objects of the League and RSL NSW is “to
provide for the sick and wounded and
needy among those who have served, and
their dependants, including pensions,
welfare & benevolent fund, medical
attention, homes and suitable
employment”.
• Mortality Payments fall into this category.
Mortality Payments (cont)
• All recipients of these payments must be
‘bona fide’ recipients.
• All payments must be for necessitous
circumstances.
• No Cash payments are to be made.
• No payments direct to estates, all
payments are to be made to providers. i.e.
Funeral Directors etc.
Mortality Payments (cont.)
The conditions described in the
previous slide on Mortality
Payments meet the
requirements of the ATO and
Australian Charities and Not-forProfit Commission (ACNC).
THANK YOU
The Price of Liberty is Eternal Vigilance