[Linux-aus] Constitutional background and towards a reformed constitution for Linux Australia

Mon Jan 2 14:53:20 AEDT 2023

Hi members,

Regarding changes to the LA constitution, I propose we stay within the NSW
Fair Trading Model Constitution document [1].

The NSW Fair Trading Model Constitution section 4, "Register of members",
is the basis for the Linux Australia Constitution section 7 ", Register of
members" [2].

Deviating too much from the model constitution will likely cause
misinterpretation and open the floor to possible legal issues.

The main issue our members must resolve is satisfying the purpose of
obtaining member information and how that works with our privacy policy [3].

Our constitution S7(4) [4] states that a member can request "any" part of
the register, whereas the model constitution S4(4) states that a member can
request "a" part of the register.  This word is crucial as in addition to
name, postal address and joining date, the register *could *contain
additional information, such as email address, phone number etc.

I would suggest changing the wording in our constitution S7(4) [4] from
"any" to "a", which will help council members vet the member data portion
requested with the purpose of the request as outlined in S7(6) both parts
(a) and (b) [5], and bring our constitution in line with the NSW Fair
Trading model constitution.

The purpose of using member data outlined in S7(6)(b) is clear and a
compliance requirement.

The purpose of using member data outlined in S7(6)(a) needs to be
clarified.  Using member data for postal newsletters and communications of
member meetings and events seems reasonable.  However, the phrase "or other
material relating to the association" [6] is open for interpretation.

Could I suggest that members debate what "other material relating to the
association" is appropriate to communicate to a member via their personal
data on the register, now and in the foreseeable future?

Onboarding New Members:
Something within our control and without having to change the constitution
is ensuring that when new members register, they are sent links to the
constitution and privacy policy.

We could also clarify what data is stored, how members can request access,
and for what purposes within the same onboarding message (once everything
has been appropriately defined).

In the same communication, we could ensure the member understands they can
exercise their S7(5) [7] right to keep their data private and how to action
that request.

I welcome feedback and thoughts from our members on this topic.

Wil.

[1]
https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/model-constitution
[2]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/constitution.txt#:~:text=7.%20Register%20of%20members
[3]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/privacy_policy.md
[4]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/constitution.txt#:~:text=of%20the%20association.-,(4),-A%20member%20of
[5]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/constitution.txt#:~:text=available%20for%20inspection.-,(6),-A%20member%20must
[6]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/constitution.txt#:~:text=or%20other%20material%20relating%20to%20the%20association
[7]
https://github.com/linuxaustralia/constitution_and_policies/blob/master/constitution.txt#:~:text=of%20the%20information.-,(5),-If%20a%20member

On Mon, Dec 19, 2022 at 3:45 PM Kathy Reid <kathy at kathyreid.id.au> wrote:

> Thanks so much Wil and Jonathan - super helpful!
>
> We have a clear way forward for anyone wanting to contribute to changing
> the Constitution :-)
>
> Best, Kathy
> On 19/12/2022 12:10 pm, Wil Brown wrote:
>
> Thanks, Kathy
>
> Since the initial ask for members' information was requested, we (the
> council) have discussed and noted that the current Constitution wording for
> section seven, specifically subsections three and four, likely need to be
> updated [1] to be 1) in line with changes to the NSW Fair Trading Act model
> constitution, 2) set a realistic time for response, 3) clarity of what data
> can be obtained, 4) what it can be used for and 5) how the constitution and
> privacy policies work together.
>
> We also noted that the timeframe between the then council meeting (October
> 26, 2022) and the upcoming AGM was unrealistic to discuss and implement the
> changes.  We will raise this as an issue for the 2023 LA Council to action.
>
> In the meantime, we welcome all members to contribute to the discussion on
> this thread.
>
> Refs:
> [1]
> https://linux.org.au/council-meeting-26th-october-2022-minutes/#:~:text=Do%20we%20need%20to%20change%20the%20wording%20in%20the%20constitution%20S7(3)%20and%20S7(4)%20to%20explicitly%20state%20what%20register%20data%20a%20member%20can%20receive%20upon%20request%3F
>
>
> Regards,
> Wil.
>
> On Mon, Dec 19, 2022 at 11:02 AM Kathy Reid via linux-aus <
> linux-aus at lists.linux.org.au> wrote:
>
>> Hi folx,
>>
>> Firstly I hope that this note finds everyone safe, well and doing OK,
>> after another challenging year on several fronts.
>>
>> Here, I'm weaving together several threads of discussion on the mailing
>> list in an attempt to help the community forge a path ahead; this isn't
>> Council endorsed - I'm doing this because I know how much Council has on
>> at this time of year with end of year accounting, annual report and
>> election preparation. They simply don't have time to get involved in
>> discussions on list at the moment. So, I'm providing information that
>> the community needs if they want to change the Constitution. I am going
>> to remain neutral on whether the constitution *should* be changed - and
>> limit the information here to the tools the community can use to
>> *effect* change, if desired.
>>
>> CONSTITUTIONAL BACKGROUND
>>
>> Linux Australia is an incorporated association registered in the state
>> of New South Wales. As such, the primary legislative authority is the
>> Office of Fair Trading in NSW [1]. The primary underpinning legislation
>> is the NSW Incorporated Associations Act 2009 (NSW) [2].  The
>> legislation divides Associations into Tier 1 and Tier 2 organisations,
>> depending on their size and assets. Linux Australia, due to its
>> holdings, is a Tier 1 organisation.
>>
>> The Office of Fair Trading makes available a "model constitution" that
>> associations can use as their association constitution - this gets
>> updated from time to time, and was most recently updated earlier in the
>> year [3]. For example, the new model constitution is more specific about
>> elements such as the quorum required at general meetings. It provides an
>> excellent basis for LA's constitution, but has had holes in it in the
>> past. I haven't read the new one in depth, so cannot comment on it here.
>>
>> PREVIOUS CONSTITUTIONAL CHANGES
>>
>> Linux Australia has previously made constitutional changes, generally
>> with the intent to come into compliance with the Act, or to remain
>> compliant. Some of the organisational history here is before my time,
>> but I've done my best to provide links to relevant changes. You'll note
>> that community discussion on changes was, ah, equally vociferous.
>>
>> - In 2004, changes were made to allow the Secretary to approve
>> memberships without needing approval by a Committee (Council) meeting
>> (among others I think) [4]
>>
>> - In 2011, changes were made to align with the Act and I believe to move
>> the financial year of the organisation to better align with conference
>> financials [5]
>>
>> MAKING A CONSTITUTIONAL CHANGE
>>
>> In general, the Council has the power to make a constitutional change
>> without consulting the membership. In practice, this has been discussed
>> on this mailing list, and often put to a formal vote of members. For
>> example, in 2017, a proposal to change the organisation's name was
>> proposed (for transparency, by me in my capacity as then-President), and
>> voted on as a motion at the upcoming AGM [6]. Once a decision has been
>> arrived at, a member of the Council, or the organisation's public
>> officer then contacts the Office of Fair Trading to update the
>> Constitution. Fair Trading must agree to the change, and for this
>> reason, Linux Australia will provide a rationale for the change -
>> including, for example, results of a motion voted on at an AGM or SGM.
>>
>> MAKING CHANGE HAPPEN IN PRACTICE
>>
>> So, that's the *legislative* and *procedural* aspect of constitutional
>> change for Linux Australia. In reality, the process of change often
>> takes months of negotiation, discussion and debate on list. These
>> discussions can get heated and occasionally, uncivil - so let's avoid
>> that - but the energy here shows the passion that our membership has for
>> creating structures that reflect our values and desired ways of working.
>>
>> WHAT NEXT?
>>
>> - If the community wishes to change the Constitution, you need to reach
>> agreement on what you want to change it *to*
>>
>> - The Model Constitution is a good starting point.
>>
>> - In the past, GitHub has been used as a platform to transparently
>> discuss and see changes and proposals - https://github.com/linuxaustralia
>> .
>>
>> - When a loose consensus has been arrived at, the change is generally
>> put up for voting on - at an AGM or SGM. They both have notice periods.
>>
>>
>> Kind regards,
>>
>> Kathy Reid
>>
>>
>>
>>
>>
>>
>> [1]
>>
>> https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations
>>
>> [2] https://legislation.nsw.gov.au/view/html/inforce/current/act-2009-007
>>
>> [3]
>>
>> https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/model-constitution
>> see also
>>
>> https://www.fairtrading.nsw.gov.au/__data/assets/word_doc/0018/1102491/Model-Constitution-for-Associations-2022-3.docx
>>
>> [4] 2004 -
>> https://lists.linux.org.au/pipermail/linux-aus/2004-January/009490.html
>>
>> [5] 2011 -
>> https://lists.linux.org.au/pipermail/linux-aus/2011-May/018832.html
>>
>> [6]
>> https://lists.linux.org.au/pipermail/linux-aus/2017-December/023288.html
>>
>>
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>
>
>
> --
> Wil Brown
>
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-- 
Wil Brown

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<https://zeropointdevelopment.com/>*
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*WordPress Community Deputy*

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