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

[Kathy Reid]

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