Board Accountability

DID YOU KNOW?

Incremental changes by Directors to the original Brindabella Christian Education Limited (BCEL) governing documents (the Constitution) has removed key internal accountability mechanisms, designed to protect the charity and the interests of its members and stakeholders.

With membership of the charity consequently confined to the Directors themselves, the Directors now have sole governance of the school. Removal of sunset clauses and no annual electoral cycles have enabled directorships for life!

Select the documents below to compare the original constitution against the current constitution, as sourced from ASIC and the ACNC Charity Register as at 19 March 2023:

Original BCEL Constitution 2002

Current BCEL Constitution 2017

Detailed Info

MORE DETAILS

Select the heading below to quickly jump to the relevant section.

Unusual

BCC Governance Structure

The current governance structure at BCEL gives the three current Board Directors, Greg Zwajgenberg (Chair), Alyn Doig and Allan Davis, sole governance and management of the school and its resources which includes around $20 million, per annum in revenue.

ASIC records, which include BCEL Board Minutes, show past Directors, which included the current Board Chair, made incremental changes to the BCEL Constitution over a number of years removing key internal accountability mechanisms resulting in a governance structure where:

Membership of the charity is closed and confined to directors exclusively,
The company can operate with only three directors,
Clauses relating to elections and electoral cycles have been removed,
Appointments to the Board are not transparent,
Removal of sunset clauses allows unlimited tenure of directors, and
The quorum for charity general business has been set at 20%.

Why is accountability important?

Accountable governance in a school is essential for a variety of reasons. Here are some key reasons why:

Ensuring effective use of resources: A school that has accountable governance can ensure that resources, such as funding, are used effectively and efficiently. This can help the school to provide high-quality education and support services to its students.

Transparency: When a school has accountable governance, decision-making processes are transparent and open to scrutiny. This helps to build trust among stakeholders, including staff, students, parents, and the wider community.
Improved academic outcomes: When a school has accountable governance, there is a greater focus on improving academic outcomes for students.
Better communication: When there is a clear governance structure in place, communication between the school's administration, teachers, parents, and students is more effective. This can help to create a more collaborative and supportive learning environment.
Mitigating risks: A school with accountable governance can better identify and mitigate risks, such as financial mismanagement or misconduct by staff. This can help to protect the school's reputation and ensure that students receive a safe and secure learning environment.

Overall, accountable governance in a school is critical to creating a culture of transparency, trust, and accountability that supports student success.

The chief charity regulator, the Australian Charities and Not For Profit Commission, ACNC states that “all charities must meet a set of governance standards to be registered charity”.

The ACNC explains:

“The Governance Standards are a set of core, minimum standards that deal with how a charity is run (including its processes, activities and relationships) – its governance. The Standards require a charity to remain charitable, operate lawfully, and be run in an accountable and responsible way. They help maintain public trust in charities and help charities continue to do their charitable work”.

Board

Board Members Have Unlimited Tenure

BCEL Board Minutes, held by ASIC, indicate Directors have been given unlimited tenure as a result of the removal of 'sunset clauses' from the Constitution. This means potentially, they can remain Directors for life!

Clause 37 & 38 of the BCEL Constitution relating to a director’s term of office (amount of time served) indicate Directors could previously only serve a two year term and were then up for re-election for a maximum of two further consecutive terms (6 years total). However, these clauses were removed from the BCEL Constitution in 2006.

The Association has reviewed governance structure and practice across other non-government schools in the ACT and notes, the defined terms of service for directors is commonly set around 3 years, with EVERY school setting a maximum consecutive term of service limited to 9 years or less (the maximum term recommended by ASX Corporate Governance Council).

The ACNC Charity Register indicates the current Responsible Persons (Directors) of BCEL are:

According to ASIC Records,

- Greg Zwajgenberg has held a continuous Directorship since 2003.

- Alan Doig has held a directorship since 2015.

- Allan Davis has held a directorship since 2021.

(His son, Elliot Davis currently holds the role of Deputy Principal at BCC)

Evidence of the Amendment to the Constitution

These clauses were removed from the section title “Elected Board Members” of the Constitution in 2006 and formally notified to ASIC in 2010 giving Directors unlimited tenure. ((ASIC Notification of Resolution dated 10/5/10 Document #026458298).

Clauses 37 & 38 originally read:

Clause 37: At each AGM, the members must elect up to eleven persons as members of the Board to hold office subject to this constitution until the close of the second annual general meeting following the meeting at which they are elected when they must retire from office but are eligible for re-election on no more than two further consecutive occasions.

Clause 38: A person is eligible for election or appointment to the Board if, despite having served three consecutive terms of office, he is elected or appointed at least six months after the end of his last term of office”.

Only Clause 36 now remains allowing for Board Directors to be appointed and approved by a fellow Director:

Clause 36: A person is not eligible for election as a member of the Board unless the person or some other member has, at least 28 days before the meeting at which the election is to take place, left at the office a notice (endorsed with the person’s consent) proposing the person for appointment as a member of the Board. If a person is recommended by the Board for election, such notice is not required.”

Why are annual electoral cycles and limited terms of office important?

Annual electoral cycles and terms of office are important for school governing boards for several reasons:

Ensuring accountability: By having regular elections and limited terms of office, school governing boards can ensure that they remain accountable to the community they serve. This helps to prevent any individual or group from gaining too much power and authority within the board.
Encouraging new ideas and fresh perspectives: Annual electoral cycles and limited terms of service help to ensure that new members are regularly elected to the board. This brings fresh ideas and perspectives that can help the board stay current and effective in meeting the needs of the school and its students.
Promoting stability: While annual elections and limited terms of office promote change, they also promote stability. By providing a consistent cycle of elections and term of office, the board can maintain continuity and prevent any one group from dominating the board for an extended period of time.
Providing opportunities for community involvement: By having regular elections, school governing boards can encourage community involvement in the decision-making process. This can help to ensure that the board is representative of the community it serves and that the decisions made reflect the needs and values of the community.
Ensuring compliance with regulations: Many regulations and policies require that school governing boards have regular elections and limited terms of service. For example, common practice, amongst all other non-government schools reviewed by the Association, was to adopt the ASX Corporate Governance Council recommendation of a maximum term of nine years for all directors.

Overall, annual electoral cycles and term limits are important for school governing boards because they promote accountability, encourage new ideas and perspectives, promote stability, provide opportunities for community involvement, and ensure compliance with regulations.

Directors

Directors Appointed by Invitation Only

The BCEL constitution contains a section entitled “Elected Board Members” with one remaining clause (36) which states:

“A person is not eligible for election as a member of the Board unless the person or some other member
has, at least 28 days before the meeting at which the election is to take place, left at the office a notice (endorsed with the person’s consent) proposing the person for appointment as a member of the Board. If a person is recommended by the Board for election, such notice is not required.”

The removal of clauses 37 and 38 has resulted in BCEL Board Members themselves being able to personally select and appoint someone into the role of Director without a notice period, or by election.

The Association notes, a personal appointment of directors by another Director:

• limits transparency;
• prevents charity stakeholders, particularly members, from having a say in the process;
• could be viewed as favouritism and may create a perception of nepotism, which can erode trust in the school board;

• can lead to a lack of diversity and representation on the board;
• limits accountability as elected board members are accountable to those who elected them, whereas

appointed directors may only be accountable to the person who appointed them.
• could create potential conflicts of interest as the director(s) may have personal or business relationships with the director who appointed them. These conflicts can compromise the integrity of the board and its decision-making processes.

Charity

Charity Membership Restricted to Board Directors Alone

BCEL’s charity membership has been amended over time, from a broad and representative membership model, to one confined to its Director’s (the trustee) exclusively. To be clear, there are currently NO members of the BCEL registered charity apart from its three current Directors, Greg Zwajgenberg (Chair), Alyn Doig and Allan Davis.

Evidence obtained by the Association from ASIC indicate any last remaining members, beyond the current BCEL Directors themselves, were removed by the current Board Chair personally on 23 July 2019 (ASIC Document No. 0ERP74638). Consequently, these three Directors are accountable to no one but themselves!

The ACNC holds a public register of a charity’s current Responsible Persons (Directors)

Evidence of the Amendment to the Constitution

ASIC records, which include Board Minutes, show the following change to the Constitution agreed by Directors at the time: (ASIC Notification of Resolution dated 10/5/10 Document #026458299)

“Resolves that in accordance with Clause 10 (b) iv of the Constitution that the criteria for membership of the company is contingent on being a Director of the Board”.

Previously the BCEL Constitution stated (Clause 10) a member of the company is:

“a person who signs and returns to the Secretary a form approved by the Board in which the person

(i) consents in writing to being a member,

(ii) signs a commitment to the Company’s Objects & Statement of Faith,

(iii) makes such financial contributions that may be determined by the Board from time to time,

(iv) complies with any other criteria for ordinary membership that may be determined by the Board from time to time; and who,

(v) is admitted to membership by a two-thirds majority of the Board. The Board may reject any application for membership without assigning a reason for such rejection.”

BCEL like most non-government schools in Australia, is a registered charity meaning it operates essentially as a not-for-profit entity and receives tax benefits accordingly. Traditionally, charities are governed by a set of Board Directors and have a broad, representative membership of individuals who elect these Board Directors on a cyclical basis.

The chief charity regulator, the ACNC, stipulates all registered charities must meet minimum Governance Standards which includes a requirement that the charity trustee is accountable to its members (set out in Governance Standard 2).

“Charities must be open and accountable to their members. This standard helps members to understand their charity’s operations and raise questions about its governance.”

Board only 3

BCEL Board Can Have up to 11 Directors but Currently Only Has 3!

The BCEL Board currently has 3 Directors.

Since 2006 the Constitution (clause 33) has provided for 11 directors (Board Members).

In 2013, Board Minutes, held by ASIC, show Clause 33 of the Constitution was amended to remove the principal as one of the 11 directors (ASIC Notification of Resolution dated 29 May 2013 #28500778).

The Constitution currently states in section “The Composition of the Board” – Clause 33: “The Board comprises up to eleven persons elected by the *members”.

* The Association notes, BCEL currently has no members except the Directors themselves in accordance with amendments to Clause 10 (b) v".

Repeated

Attempts to Join Charity Membership

The Association holds evidence of a long history of numerous attempts by parents, both individually and collectively, to seek broader representation of the charity on the school Board and the opening up of the charity membership to include parents.

Evidence includes correspondence from parents to the BCEL Board, as early as 2015, specifically requesting membership with the charity and concerns around limited opportunity for stakeholders to participate in selection of Board members.

A long history of tensions between parents and the school Board, around governance, lack of accountability and limited transparency, including unsuccessful attempts to broaden the charities membership, has been captured in local media reports.

The Association understands the current governance model does not reflect the original intent and vision for the school as supported by a prominent long time Canberra Community Leader in an Impact Statement provided during 2020:

“The composition of the Board over recent years is a far step away from the model and intent set at the inception of the Brindabella Christian College. The goal of that Board was to represent four different groups that made up the school community: the parents, the children, the staff and the management groups being Board & School Administration”.

"Unsuccessful Attempts by Parents to Join the Board" reports the Riot Act (21 Dec 20)

“Parents have attempted to join the board on multiple occasions over the past three years to no avail, and Mr Zwajgenberg has previously rejected any suggestion that the school could be controlled by parents”.

"Board's Termination of Boys Enrolments Outrages School Community" reports the Riot Act (30 March 20)

“….we (parents) started a twofold appeal to Federal and State agencies to look into Brindabella’s governance and failure to protect the children. Hearing from the Federal Minister’s office that they are having a close look at the school is probably the best news we’ve had in a while.”

Community Petition "Help Protect Our Children at BCC" Launched January 2020

A change.org petition, started in support of the Jayatilaka family early 2020 after their two sons were unlawfully excluded from the school by the BCEL Board, gathered strong support from over 1,000 community members and affiliates seeking change to the unaddressed instances of misgovernance impacting the school community.

“These actions by the Board represent a growing pattern of Board overreach into operational issues, which have directly resulted in the resignation of many staff and several school principals; the dissolution of the Parents and Friends Association; and, threats of legal action against several school families.”

"Board Resignation Highlights Ongoing Grave Concerns Over School Governance" reports Riot Act (6 Mar 20)

“A new resignation from the Brindabella Christian College Board has highlighted what parents say is an urgent need for governance reform. The long-running trouble at the College stems from the conflict between some parents and the increasingly small Board. Brindabella is run by a private not-for-profit company. The Board can appoint up to 11 members under its constitution but is currently closed.

Region Media has seen an Australian Securities and Investment Commission document advising of a change to company details. They indicate that Wendy Chesworth resigned from the Board on 2 March. Remaining Board members are listed as Alyn Doig, David Whittem and longstanding chair Greg Zwajgenberg. Region Media understands that the Board can function with three members, but parents say serious questions about transparency and competence remain”.

"Parents Raise Serious Questions About BCC Governance" reports the The Canberra Times (24 August 19)

“In that time (previous five years), it is understood at least one independent review calling for the board's power to be checked has been buried, and staff and parents have now raised serious questions about the college's governance and financial viability”.

The article continues, “Multiple parents said their efforts to join the company - and so the board - had been repeatedly rejected over the years. But Mr Zwajgenberg stressed the board recruited based on skill set when required and did not operate under a parent-controlled model like many Christian schools”.

"Board Director Resigned Due to Concerns Around Board Operations" reports Canberra Times (24 Aug 19)

“A former board member who recently resigned his position due to his concerns about its operations said meetings were often taken up by the day-to-day minutiae of running the school rather than the usual governance and financial matters”. "Even down to what time a bus should leave for camp," he said. "This is all stuff that should have been left to the principal...I asked for more members on the board, we can have up to 11 [in our constitution]. I asked for a clearer separation between the principal's role and the board's."

"BCC Parents and Staff Raise Governance Concerns", The Canberra Times (30 Nov 17)

“Parents and staff at BCC have raised fresh concerns about the school’s governance following the dramatic sacking of Principal Bruce Handley”.

"College Slates Review as Parents Raise Governance Concerns" The Canberra Times (3 Sept 15)

In 2015, the Canberra Times reported

"more than 30 parents met to express concerns over the board’s governance." The article states a letter distributed outlined grievances of the school community including a “lack of elected parent representatives on the school’s self-appointed six member board”, that the “board didn’t have a broadly based membership structure” that enabled them to express their views and vote on significant matters. Parents “advocated for greater openness and disclosure on major decisions and policies, better communication between the board, P&F group and the rest of the College community and clear separation between the responsibilities of the board and school leaders”.