Financial Agreement between the Commonwealth and the States
Financial Agreement between the Commonwealth and the States: unanimous decision of loan council: absence of member from meeting: whether ‘unanimous decision’ requires concurrence of all members or only of all members present
Financial Agreement between the Commonwealth and the States
The Secretary to the Treasury has forwarded for advice the following memorandum:
- Sub-clauses (h) and (j) of clause 3 of Part I of the Financial Agreement authorise the Loan Council to take certain action by ‘unanimous decision’, and sub-clauses (i) and (k) indicate the course to be followed in the absence of such a unanimous decision under sub-clauses (h) and (j).
- I have to ask if you will kindly advise whether, in the event of one of the Governments not being represented at a meeting of the Loan Council, the words ‘unanimous decision’ can be interpreted as meaning the unanimous decision of those present at the meeting.
- In this connection your attention is invited to the provision in sub-clause (e)(ii) for an absent member who has not appointed a deputy to be permitted to vote by letter or by telegram.
- Your attention is also invited to the fact that whilst sub-clauses (h) and (j) refer to ‘the Loan Council’, sub-clauses (i) and (k) refer to ‘the members of the Loan Council’.
Clause 3(c) of Part I of the Financial Agreement provides as follows:
(c) A decision in which all the members for the time being of the Loan Council concur shall be an unanimous decision of the Loan Council notwithstanding any vacancy then existing in its membership.
This provision appears clearly to indicate that a unanimous decision of the Loan Council means a unanimous decision of all the members of the Council, irrespective of whether they are actually present at the meeting of the Council or not.
Clause (3)(e) provides for the quorum of the Loan Council for the exercise of its powers at any meeting. It also makes provision for the appointment of a deputy of any member and for that deputy to exercise all the powers and functions of the member. The presence of the deputy is deemed to be the presence of the member. Further, it provides that an absent member who has not appointed a deputy may vote by letter or by telegram.
Amongst other things therefore, clause 3(e) makes provision for obtaining a unanimous decision of the Loan Council even in the absence of some of its members.
In my opinion, a decision of the Loan Council, to be unanimous, requires the concurrence of all the members for the time being of the Loan Council.
Where a member is represented at a meeting by his deputy, I think the concurrence of the deputy would be regarded as the concurrence of the member.
In my opinion, therefore, the question asked in paragraph two of the Secretary’s memorandum should be answered in the negative.
[Vol. 30, p. 63]