The following letters were received in response to two motions proposed for Friday’s Union Board meeting. One motion proposes to censure Vice President Bebe D’Souza, the other, to pursue former Vice President Tom Raue for $50,000 of legal fees. These letters have been included as submitted and, as with all unsolicited legal advice, your mileage may vary.
When the Supreme Court’s judgement was handed down over a year ago, it specified that Tom must pay the Board’s legal fees. But it carried an important caveat that the decision to do so was at the Board’s discretion.
Unfortunately for this Board, the Executive I was part of didn’t have the conviction to put this to a vote in our term. When the matter was discussed, we were told that it would be delayed or that the vote wouldn’t occur in my tenure. I consistently made clear that while I stood by our decision to censure Tom (on the grounds that I felt his action would undermine the staff’s ability to speak openly and confidentially with HR), I fundamentally disagreed with forcing him to pay legal costs. Today’s vote is a result of that failure to act, and I’m sorry that our inability to deal with this situation has caused you to clean up the mess.
As one of the people who moved the motion to censure Tom, I feel compelled to appeal to your compassionate side. Tom’s decision to take legal action wasn’t to punish the Union, it was to take issue with our governance structures. He firmly believed that the Executive had acted outside of the powers stipulated within the Union’s Regulations. I believe that the Union’s governance structures should be tested. If you believe in an open and transparent Union, then you must defend a person’s right to challenge the Board no matter whether they get it right or wrong.
I ask the Board what exactly are you achieving by doing this?
If you think that by voting this motion up you are in some way upholding the Union’s processes or governance, then you are wrong. If you think that in voting this down you will set a precedent whereby any student or director can sue the Union and ‘get away with it’ is that such a horrible cross to bear? The Board shouldn’t be an untouchable and unchallengeable force.
You may think, as some on the previous Board did, that because Tom knew what he was getting himself into he shouldn’t have taken this action. Or you may think that Tom should be forced to pay to recover some of the time lost by his decision to take legal action. By punishing him today, you aren’t undoing any of that. Your only achievement today will be to financially cripple an individual.
If that doesn’t compel you to rethink this then I appeal to your vanity. Tom, rightly, will take legal action against this decision (to do otherwise would leave him bankrupt) and you will have another six months of hearings, of bad press in Honi, of student criticism. Is that what you want?
Forget precedent, forget upholding governance, none of this will be achieved by pursuing legal costs from Tom.
In pursuing these costs, you are playing with a person’s life, his financial well being, his ability to live.
The cruelty of this is only highlighted by the fact that the Union’s ability to pay these cost is significantly greater than Tom’s. Imagine the incredible damage done to your Board, to this ‘student union’, when it is revealed that one of yours was made bankrupt because you couldn’t be bothered to absorb these costs.
I hope you see some sense.
Former USU Honorary Secretary
I can’t believe I’m writing this, but it seems that some powerful forces in the USU think it is a productive endeavour to keep on kicking a dead horse in the form of Tom Raue, this time by means of bankruptcy. A lot of the student population probably don’t know who Tom is, and the rest are probably sick of hearing about him. Tom was a student and the Vice President of the USU from 2013-2014.
For those who are unaware, staff of the university had been involved in negotiations over their Enterprise Bargaining Agreement, a process which involved the sacking of over 300 staff. This escalated to several non-consecutive days of industrial action taken by staff and students in 2013. On multiple strike days police used significant force against non-violent staff and student protesters, resulting in broken bones, serious bruising, and trauma. Students and staff called on the University to stop the police violence, however Univeristy management said there was nothing they could do.
Tom later revealed to the student newspaper Honi Soit that this was not the case. He leaked a single sentence from a USU email “they (police) advised that they were not in a position to do anything but follow them (protesters), unless otherwise instructed by the university.” A motion was then proposed to remove Tom from his position as Board Director, which was disputed at the NSW Supreme Court. The judgement was ultimately against Tom, ruling that the Board had the power to censure and remove him from Board, and the costs were awarded against him.
When a censure motion was finally voted on, it failed. Tom did the right thing by acting in the best interest of students. This is something which all Board Directors should be aiming for, considering they are supposedly the representatives of the student community. Thus, Tom finished serving his full term on Board.
Now this drama is back, one year on. A motion has been proposed to pursue Tom for $50, 000 which is the excess of the USU’s court costs. This would bankrupt him (and all other students I know).
Further, the way in which this motion is being handled is highly inappropriate. To my knowledge most Board Directors only became aware of this motion days before it is due to be voted on. It is also likely that this motion will be discussed in camera, meaning that students will not be able to hold Board Directors accountable for how they vote. This is disappointing for an organisation which has made some promising steps to becoming more transparent.
At this Board meeting there is also a proposed censure motion against Bebe D’Souza. Censures (public shaming) should be reserved for serious misconduct, which I do not think has occurred in this instance. I don’t think a Facebook post which highlights people’s identities should be considered an endorsement, and it’s ridiculous to think that Bebe would endorse a Liberal candidate. Considering the Whiteness of the Board I think it’s a worthwhile observation to be made, again and again. I think the basis of this censure is petty, and based on a fairly inconsistent application of electoral regulation. If Board Directors cannot publicly endorse candidates, then why can they sit behind the campaign desk of candidates for two weeks in plain sight of all students? I think either both should be considered public endorsements, or neither should be.
If you oppose either of these motions then I encourage you to attend the USU Board meeting on Friday 29 May at 1pm in the Sutherland Room, Holme Building. For more context on Raue/staff strikes this is a pretty excellent 2 minute video.
No one stands to benefit if the USU Board votes to pursue costs against Tom Raue at this Friday’s Board meeting.
A majority vote in favour of the motion would be morally outrageous, given the previous Board voted 6-5 against expelling Raue from Board. Included in the 6 Board Directors who voted against expulsion was Tara Waniganayaka, USU President and the mover of Friday’s motion to pursue costs. Are we to interpret Waniganayaka’s support for Raue last year as merely a cynical ploy to shore up votes for her eventually successful Presidential bid?
The motion also makes little sense from a practical point of view. Raue has clearly stated that he cannot cover some $50,000 in costs sought by the USU. If the motion succeeds, the USU will rack up further legal costs and will likely recover very little money from Raue while bankrupting him in the process.
The public outcry and denunciation of Bebe D’Souza by many in ‘the left’ after she posted a facebook status detailing the racial and cultural heritage of the three Wom*n of Colour board candidates is a clear conflict between identity politics and party politics.
Identity politics, and the belief that only people who hold the identity of a particular oppression know how to combat and find solutions for that minority group, is not rocket science. It is what allows the USU to uphold Affirmative Action in its elections, is the basis for Identity specific collectives such as the Wom*n’s Collective and Autonomous Collective Against Racism. It is why Bebe D’Souza created the Ethnocultural Portfolio. To fight against racism within the USU.
In her facebook post, Bebe displayed clear identity politics in outlining the importance of racial diversity, wom*n of colour identities and the candidates running for election. One of those wom*n was a Liberal Party member, but one of them was also a Labor Unity (Labor Right) member and another was from Grassroots.
Many have taken issue with Bebe’s ‘endorsement’ of a Liberal, but in the last 4 years, Grassroots the supposedly most ‘progressive’ and ‘explicitly left-wing’ group has run white or white male candidates for a considerable majority of their candidates. Within the USU Bebe has faced oppression and discrimination at every turn on the basis of her identity, BY white men and the institutional whiteness of the USU. I know for a fact that white male leftists from Grassroots and every ‘left-wing’ faction have committed acts of racism and sexism against Bebe and many other wom*n of colour.
Why is it then such a problem to point out diversity (or the lack thereof) in the USU elections? To all those who cry Liberals are evil, regardless of background, I ask you whether being left-wing means shit all if you continue to allow white patriarchal leadership cultures to thrive in your factions.
There is nothing progressive about white male leftist culture. I will never feel represented by a white man. A white man can never hold the Ethnocultural portfolio with any semblance of integrity. It was absolutely shocking and disheartening in 2014 when no People of Colour were elected. It was again saddening when only one Wom*n of Colour was elected in 2015. Representation matters and if you think that being left wing makes you exempt from perpetuating white patriarchy and then judging and criticising one of the most hard-working Wom*n of Colour the Union has ever seen, what kind of ‘leftist’ are you? No one has any idea the kind of sexism and racism Bebe faced in the Union, only she does. So she is the only person to make the judgement call of celebrating racial and gender diversity in the candidate field. It additionally astounds me that no one is getting angry over the mention of the Labor candidate, even though Labor has been the biggest threat to a progressive university in recent elections. Labor is responsible for horrific refugee policies, cuts to education and the continuing neoliberalisation of our environment and economy.
Tara’s decision to censure Bebe over a facebook post is of course ridiculous, compared to the other breaches that have been committed by Board Directors over the course of this campaign. Bebe has also continually stated she did not endorse a Liberal (or Labor, or Grassroots) candidate. She didn’t endorse anyone. Identity politics are not new, and the left’s aversion to identity politics just goes to show how far we still have to go before actual gender and race equality is achieved within our own groups, let alone in our university, society and beyond.
The Memory of a Goldfish
Once upon a time Tara Waniganayaka and Bebe D’Souza led a transparency review. It emerged from a period of intense criticism and scrutiny, at least from those of us masochistic enough to involve ourselves in student politics. Board directors and students (read: hacks) professed a desire and commitment for substantive, long term change.
This review emerged from the controversy surrounding Tom Raue. Tara, among others, spoke passionately against his removal. In many ways it defined her presidential campaign. It also defined the candidacy of her most significant opposition.
Now, a motion to enforce costs against Raue is going before the board, Tara is expected to move it, and it will do so behind closed doors.
The 50 000 dollars Raue may or may not be compelled to pay is student money. Students don’t even have the chance to listen to debate that will occur surrounding it, to see what our elected representatives stand for when push comes to shove. The idea that students are not even able to formally contribute to that ought to be laughable. Tragicomically, it’s reality.
The board ratified Raue’s actions when the motion to remove him was defeated. Bankrupting him is a gross repudiation of that.
The censure motion against D’Souza is similarly laughable. She did break regulations, but it was not a serious breach. A censure is unnecessary.
The controversy surrounding both these votes is one that has been manufactured by a culture which Board Directors and Management, both past and present, have been complicit in creating.
When the words ‘fiduciary duty’ are thrown around Directors are quick to forget anything they have done in the past. They forget that they have the capacity to define what those duties are.
How times change.
Why the Board should not pursue costs
The Board should not proceed with pursuing Mr Raue for costs. This would be both unwise, and out of step with the directors’ duties. The reasons for this are as follows.
First, the decision would vindicate uncommercial and imprudent decisions by past directors, and would seriously weaken any deterrent aspects of this affair as it applies to future directors. The imprudent decision was to defend the case against Mr Raue instead of settling. It would have been very clear to any reasonable director that the following applied in late 2013:
- a) That there would be very little or no damage to the union if the directors settled the case in Mr Raue’s favour;
- b) That there would be immense reputational damage to the Union if it defended the case and lost;
- c) That the likelihood of the union recovering costs should they win was very low;
- d) That the first option was clearly open.
Despite this, the board did in fact defend the case. A decision to enforce the judgment is unlikely to offer financial restitution, which is something that a reasonable director in the circumstances would conclude. Thus, a decision not to pursue would not be in conflict with the directors’ duties to act in the interests of the Union, which in other circumstances would include recovering funds to which the Union is legally entitled. The substantial effect of a cost pursuit would thus be purely punitive. To engage in such punitive measures without a prospect for restitution would be to vindicate an uncommercial decision. This is not to say that it will actively encourage future boards to do the same, but it is a question of balance. Non-pursuit would mean a real possibility of a beneficial deterrent acting on the minds of future directors, and no recovery of costs. Active pursuit means reducing the possibility for such a deterrent, against which there is little increased prospect for recovery.
Secondly, a decision to pursue costs has the potential to deter legitimate challenges to abuses of power in the future. This has the potential of weakening oversight on the Board. This would be against the interests of the Union, no small portion of which rests on the faith of its members in its democratic processes and the integrity of its directors. In light of this, some observations need to made about Mr Raue’s decision to seek an injunction against the Board, which would have been clearly apparent to a reasonable director in the circumstances:
- Mr Raue would receive very little financial benefit should he have been successful. The legal representation he received was pro bono, and all he stood to gain was a small extension of his already small salary;
- There was legitimate division on the Board and in the student body about whether Mr Raue had engaged in a serious breach of the regulations, and whether this enlivened the board’s power to remove him;
- Notwithstanding the existence of the power, there was also division on the appropriateness of removing him, given the circumstances surrounding the alleged breach;
- The legal question of whether the board had power to remove was therefore of considerable importance, and its resolution either way served the interests of the Union;
- Given the above four points, it is not only open to say that Mr Raue sought the injunction in lieu of the public interest, but that the majority of students observing would reasonably have believed him to be acting as such.
The Supreme Court held that the Board had the power to remove Mr Raue. The Board legitimately decided that it was not appropriate to exercise that power. This is not to say that in the future there will not be abuses of power by oppressive majorities. In such circumstances, it is in the interests of Union members as a whole for concerned members and directors to test such abuses, whether that be through legal challenges, negotiation, lobbying or other internal processes. To pursue Mr Raue on a punitive basis would have the effect of deterring other concerned students from seeking to hold the Board to account. Given the unlikelihood for restitution noted above, the damage to transparency, accountability and fairness caused by a pursuit would far outweigh any benefits.
I trust the directors to act in accordance with their duties to students and reach an appropriate decision.
To the USU Board,
Any successful censure motion against Bebe D’Souza would represent several failures on the part of the Board. It would be a failure to recognise that D’Souza’s supposed transgression was actually what all Board Directors should be doing: encouraging individuals from marginalised backgrounds to get involved in the USU, and encouraging others to consider their candidacy. It would be a failure to pick up on and censure other Board Directors for their assistance in various campaigns, with their support for certain candidates being far more consequential than a Facebook post.
Most importantly, the fact that this censure motion exists is failure of the new set of regulations that were, apparently, supposed to make this election about what you know, rather than who you know. The spirit of these regulations was ignored as Board Directors conducted preference deals, manned stalls, even spray-painted A-Frames on the Law Lawns for their candidates – and that leaves aside the institutional knowledge that comes with having run once before and passing that on to only one or two candidates each.
It is a joke that D’Souza potentially gets censured for her conduct while others are given a free pass. These new regulations are a joke themselves. I hope that whoever ends up on the Electoral Committee for this year can fix this broken system, and that the Board realises chooses not to censure D’Souza.
I ask those who seek to censure Bebe D’Souza to really consider what on earth they hope to get out of it at this point in Bebe’s term. Pick your battles.
As the handful of USU devotees who attended today’s AGM would know, it was a rather tense affair.
As Tara noted in her report, it is deeply regrettable that personal politics play such a significant role on board, but when you have 11 strong, opinionated personalities it is bound to end up being the case.
With the third censure motion this year being put at Friday’s meeting, I fear the beginning of an
Oprah style culture where everybody gets a censure for the most minor of indiscretions. Robby and Liam receiving the same punishment for ‘offences’ of very different magnitudes serves to highlight this issue of exactly how directors who breach their duties should be dealt with. In my opinion there must be more careful analysis of what exactly a director has done wrong before action is taken, instead of slapping a censure motion upon them in any instance.
This being the first year of restrictions on what Directors can and cannot do during the election campaign, there was bound to be some kind of grey area. To say directors had no involvement in various campaigns would be highly disingenuous, but Bebe’s particular action was firmly on the edge of this grey area. Whether this is worthy of a censure motion is highly debatable, but there is a discussion that needs to be had to set a precedent in regard to what level of involvement is acceptable for a Director to have in a Board Candidate’s campaign. Hopefully the censure motion facilitates this important discussion, but is defeated due to Bebe not directly endorsing any of the candidates named in the Facebook Post. In future however, a censure motion should not be needed to start debate about how directors should act in particular situations.
In regard to the Raue question of how the board can justify pursuing a student in their early twenties for court costs, the answer is very simple; It can’t.
Alexi Polden’s recent article “Union Considers $50,000 Legal Costs as Raue Rides Again” was ridden with flaws as a result of faulty reasoning and ill-concieved assumptions.
The USU is a corporate organisation. The USU directors owe a fiduciary duty to the organisation it manages and its members. Whilst Polden and many of the readers may dispute this, they are facts and cannot be denied. Whilst many current and past board directors would add that they profess to act in the interests of its students, they cannot deny that they must first act in the interests of the USU.
Tom Raue brought legal action against the directors of the USU. This legal action was ill-conceived and did not have a reasonable cause of success. This is also fact and was found by the court in his case. The court found that there was so little merit within the case, that Raue should have to pay costs. If the court found that there was a grey area that was legitimately unclear, then the court would likely have not imposed costs.
Finally, Polden seems to take the position of a court of law in deciding that to not press legal costs would not amount to a breach of fiduciary duties. If so, Polden should consider a career as a politician as he possesses the stunning ability to jump to wild conclusions about the law without fully considering all issues.
If Tom Raue had no chance of earning an income and no assets then yes, it could be in the interests of the union to avoid pursuing costs as the legal costs would be higher than the amount recovered. However, simply taking Raue’s word that he has no money is counter-intuitive. Of course Raue would claim to have no money, he doesn’t want to pay the costs.
In reality, Raue has incurred great costs to the USU as a result of his ill-conceived and unreasonable legal action. This cost has currently been borne by the Access card fees and SSAF contributions of all its members. If the directors did not consider pressing for legal costs, then they may be open to legal action as a result of their inability to act in the best interests of the USU.
Finally, bankruptcy is not the only avenue available to the Union. They may decide to factor the debt which would allow them to sell the debt to another company at a lower price and allow that company to pursue Raue. Alternatively they may decide to apply for a garnishee order to Raue’s wages.
All members of the union have been stolen from in the case of Raue’s actions against the union. Members and the USU deserve that money back. The directors of the USU at the very least have the obligation to consider pressing costs and in my mind, if they decide against pressing costs, they better have a good reason or a good legal team to defend against a suit for a violation of director’s duties.
Secretary, Sydney University Business School Society
NSW Justice of the Peace