However the constitution says:Consistent with the Constitution, which enables us to appoint a director in circumstances such as these, I can advise that Tim Youngberry has been appointed to the Board, until 30 September.
So with less that 6 Directors they must no act. Except that they can call an EGM, which they did not do. Or:(b) The continuing Directors may act notwithstanding any vacancy in their number, provided that not less than 6 Directors (excluding External
Directors) continue in office. If there are less than 6 Directors continuing in office, the Board must not act except in emergencies, to appoint Directors up to the minimum of 6 Directors or to call and arrange to hold a meeting of Members.
In the case of an emergency they can appoint Directors up to the minimum of 6. So the question arises is this an emergency? I can see how it may be an emergency for the Directors personally, in that they are being investigated by ASIC etc. but is it an emergency for CPA Australia?
Emergency is not a defined term of the constitution. Here are a couple definitions:
https://www.merriam-webster.com/dictionary/emergencya serious, unexpected, and often dangerous situation requiring immediate action.
So there are basically 2 elements:an unforeseen combination of circumstances or the resulting state that calls for immediate action
1. A serious situation
2. Requires immediate action
Now the constitution does say/imply in that above clause that having less that 6 Directors is not by itself an emergency.
So the questions for the board are:
1. What is the serious situation?
2. What is the immediate action being undertaken?
I don't accept that the review is the immediate action as the review is only a recommendation of what action should be taken. I can't see how a review that may take many months to complete and may recommend no action at all amounts to immediate action.
A comment on the serious situation aspect. I know they have less that 6 Directors and their credibility is shot. But the action taken which is to start a long winded review process does not immediately address that and may not address it at all. So what is the serious situation.
My view is that the appointment was not constitutional.