<div dir="ltr"><div class="gmail_extra"><div class="gmail_quote">On 11 April 2014 00:02, Scott Ferguson <span dir="ltr"><<a href="mailto:scott.ferguson.it.consulting@gmail.com" target="_blank">scott.ferguson.it.consulting@gmail.com</a>></span> wrote:<br>
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<div>On 10/04/14 22:45, Noel Butler wrote:<br>
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<p>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.</p></blockquote>
</div>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. <br>
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[*1] are you? </div></blockquote><div><br></div><div>I am, so let's look at what the law says.</div><div><br></div><div>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.<br>
</div><div><br></div><div>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 (<a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/aia2009307/s26.html" target="_blank"><i>Associations Incorporation Act 2009</i> (NSW) s 26(1)</a>).</div>
<div><br></div><div>The <a href="http://linux.org.au/constitution" target="_blank">LA constitution</a> 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 <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2008/154.html"><i>Goodwin v VVMC Club Australia (NSW Chapter)</i> [2008] NSWSC 154</a> as one example).</div>
<div><br></div><div>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). </div>
<div><br></div><div>Clearly therefore Council's position:</div><div><br></div><div>> 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.</div>
<div><br></div><div>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 <i>Associations Incorporation Act</i> and the principles of natural justice.</div>
<div><br></div><div>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.</div>
<div><br></div><div>Michael</div>
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