[Linux-aus] Minutes of Council Face to Face, 8-9th March 2014, Hobart, Tasmania

[Michael Cordover]

On 11 April 2014 00:02, Scott Ferguson <
scott.ferguson.it.consulting at gmail.com> wrote:

>  On 10/04/14 22:45, Noel Butler wrote:
>
> You are trying to claim jurisdiction over what is entirely private corro
> between two people who may just happen to be members of LA - you can not do
> that, the first time you try "interfere" you may well find yourself on the
> wrong end of the legal system - if someone wanted to get narky.
>
> Not being a lawyer [*1] I referred to one, and she asks if you can point
> to a precedent for your claim that an association revoking a membership on
> the grounds of bad behaviour is illegal - or that the association "trying"
> to mediate the complaint might be in breach of some law.
>
> [*1] are you?
>

I am, so let's look at what the law says.

First though, let me say that frankly, this whole discussion exemplifies
the idea of a storm in a teacup. The Council will consider complaints as
they come in and determine how to respond - based mostly on common sense.
If it ever happens that there is a complaint about private email, and there
are concerns it's out of the Council's scope to respond in the way they do,
and the parties don't agree with the Council's response, and the parties
wish to argue the point about the Council's power, that can be dealt with
then. That might require considering the law, and likely would require
specific legal advice.

But for the sake of it, let's see what the law says. The constitution of LA
has the effect of being a contract binding on members (*Associations
Incorporation Act 2009* (NSW) s
26(1)<http://www.austlii.edu.au/au/legis/nsw/consol_act/aia2009307/s26.html>
).

The LA constitution <http://linux.org.au/constitution> clause 11(1)(b)
permits the Council (known in the constitution as the committee) to
discipline a member who "has wilfully acted in a manner prejudicial to the
interests of the association." Certainly it is possible for disputes
between members arising out of the activities of an association (but not
strictly about association matters) to be justiciable on this basis
(see *Goodwin
v VVMC Club Australia (NSW Chapter)* [2008] NSWSC
154<http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2008/154.html>
as
one example).

In addition, clause 10 of the constitution requires that disputes between
members in that capacity (e.g. relating to the rules of LA) are to be
resolved by mediation (and further in accordance with that clause).

Clearly therefore Council's position:

> If a person is sending a mail privately, it is sent between two people,
then a member can make a complaint about another member, and may result in
mediation.

is prima facie lawful. If the content of the email is totally unrelated to
LA (for example, arises from a pre-existing relationship between two
individuals who happen to be LA members) the complaint clearly would not be
actionable by the Council. For matters related to LA - specifically that
may affect the interests of the association, or the obligations of members
to each other - it will be. It's worth noting that in every case the
Council's powers are limited, not just by the constitution but also by
the *Associations
Incorporation Act* and the principles of natural justice.

I hope this has helped to explain broadly how the law operates. It's of
course not legal advice; individual matters will require their own detailed
consideration. Now back to your regularly scheduled programming.

Michael
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