[Linux-aus] Access to membership list?

Andrew Donnellan ajdlinux at gmail.com
Mon Dec 17 19:34:36 EST 2012

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(Really don't know why I'm writing this, but I think it needs saying.
IANAL, but I do have a basic understanding of some legal concepts from
various sources...)

On 17/12/12 18:37, Noel Butler wrote:
> p6a should be amended to remove the bit of newsletters, if I didn't
> ask for it, then its a breach under the Spam Act, yes a breach
> because it would be an individual member sending it, not L.A., and
> if it was a L.A endorsed newsletter, then, it would be sent by
> official means which would not require a member seeking access to a
> members database to do it.

No - if the member is acting as an officer of the association, or by
the delegated authority of the association, then the association is
doing it. And there's nowhere in the Constitution which says they have
to establish an automated email system so that you can do this without
looking at the members' register - there are plenty of
technologically-impaired organisations out there that dispatch their
newsletters by simply pasting a list into their email client, and you
can't expect them to do otherwise.

In any case, it would only a breach of the Spam Act if the particular
message falls within the definition of "unsolicited *commercial*
electronic message" in said Spam Act.

> I think the Federal Privacy Commissioner would have some serious 
> concerns about some or a lot of S7.

When you sign up to be a member of LA, that implies acceptance of the
Constitution, which has the legal force of a contract (see
Associations Incorporation Act 2009, Section 26). I'd imagine the
courts would say that you have thus implied your consent to the
disclosure of your information pursuant to that Constitution, and you
can withdraw that consent by resigning your membership.

Also, I believe every State/Territory's Model Constitution/Rules
includes a provision regarding inspection of registers (though perhaps
not purchasing copies). The Corporations Act 2001 s173 has similar
provisions to the LA Constitution - including the right to purchase
copies - which apply to all corporations, no matter what
constitutional provisions they have. This includes listed companies
with millions of shareholders - they all have a legal obligation to do
this. The only difference is that they are only required to give name,
address and date of membership.

In any case, by becoming a member of the association, you agree to it,
and thus it's lawful. Whether or not it's a good idea is a different
question, but I don't think the Privacy Commissioner will care at all.

As to why it may be a good idea: I can't think of too many reasons off
the top of my head, but I'm sure there are some. One that does come to
mind, however, is that in the event that an SGM needs to be called
under s25(4) of the Constitution (ie. the committee failing to convene
the meeting as legally required), the member convening the meeting
will need access to the members' register so as to give appropriate
notice. Of course, if the committee is ignoring its core
responsibility to call SGMs then it's doubtful they would assist in
copying the members' register, but regardless...

(who has spent far too long reading the Associations Incorporation Act
in recent months)

- -- 
Andrew Donnellan                                 andrew at donnellan.id.au
Tel: +61 2 6184 0998 (ANU x40998)           andrew.donnellan at anu.edu.au
Mob: +61 406 711 748                      http://andrew.donnellan.id.au

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