My response to Q1 is the same as my response to Q2 – the Chairperson MAY rule the Motion out of order but the Chairperson can use their discretion in doing so. Ruling the Motion out of order is not mandatory merely because it does not strictly comply with Section 4 of Schedule 1 of the SSMA 2015. It is very important to understand the meaning of the word MAY in legislation.
INTERPRETATION ACT 1987 – SECT 9
Meaning of may and shall
9 Meaning of may and shall
(1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.
(2) In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.
4 Inclusion of matters on agenda
(1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
(2) The requirement is to be made by written notice given to the secretary of the owners corporation that:
(a) sets out the required motion, and
(b) states the name of the person making the requirement, and
(c) includes an explanation of the motion of not more than 300 words in length.
19 Chairperson may rule certain motions out of order
The chairperson at a meeting may rule a motion out of order if:
(a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or
(b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.