[Linux-aus] Constitutional background and towards a reformed constitution for Linux Australia
Simon Lees
simon at simotek.net
Mon Jan 2 16:40:49 AEDT 2023
On 1/2/23 14:23, Wil Brown via linux-aus wrote:
> 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.
This also sounds reasonable to me.
> 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?
From a quick read of the constitution I can see a couple of areas that
may be impacted which illustrate why this may be important.
Reason One:
In Section 25 Members may call for a special general meeting but as
outlined below the amount of paperwork to do such would require some
level of coordination
25. Special general meetings – calling of
...
(2) The committee must, on the requisition in writing of at least 5
per cent of the total number of members or 20 members, whichever number
is fewer, convene a special general meeting of the association.
(a) must state the purpose or purposes of the meeting, and
(b) must be signed by the members making the requisition, and
(c) must be lodged with the secretary, and
(d) may consist of several documents in a similar form, each signed
by one or more of the members making the requisition.
Further in Section 19 a member of the committee may be removed in a
general meeting
19. Removal of committee members
(1) The association in general meeting may by resolution remove any
member of the committee from the office of member before the expiration
of the member’s term of office and may by resolution appoint another
person to hold office until the expiration of the term of office of the
member so removed.
So it seems like a somewhat sensible safeguard that if a group of
members believe that say the secretary (or another member) has behaved
inappropriately that they may want to discuss with other members the
possibility of calling for a SGM without stating the reason. As an
individual or group of individuals may not have decided whether they
actually want to go ahead with calling a meeting i'm unsure if this case
fits within the current reasoning. But I believe that its important for
the balance of any constitution even if in the past its caused me many
"headaches" when being on the board of community projects (People can
ask me about that off list if they really feel like it, its off topic
here).
It would be possible to retain such a safeguard by providing a way for a
member to contact all other members without giving direct access to
personal information, however if this approach was to be taken I believe
the constitution should be updated to ensure it remains.
Reason Two:
This is a somewhat strange one for an open source community and maybe
points to another section of the constitution that we should consider
changing.
10. Resolution of disputes
(1) A dispute between a member and another member (in their
capacity as members) of the association, or a dispute between a member
or members and the association, are to be referred to a community
justice centre for mediation under the Community Justice Centres Act 1983.
(2) If a dispute is not resolved by mediation within 3 months of
the referral to a community justice centre, the dispute is to be
referred to arbitration.
(3) The Commercial Arbitration Act 1984 applies to any such dispute
referred to arbitration.
I am not familiar with NSW law and whether the Act listed above gives a
Community Justice Centre the legal right to request a members personal
details in this case or whether this would be a case that would need to
fall under the "other material relating to the association". Having just
re read the relevant part of the constitution there is a section (b)
"any other purpose necessary to comply with a requirement of the Act or
the Regulation." Which covers this but i'll leave this reason because I
think there is stuff in the below paragraph worth still discussing here.
As someone who has been involved in the openSUSE Board, its constitution
the first point for conflict resolutions between members should be the
the Board, having looked at this in the past I know many open source
projects either use there equivelent Board / Council or either a
subcommittee or a separate internal body to deal with such situations.
Given the constitution already gives the committee the power to
discipline members (Section 11) maybe in the case of an organisation
such as Linux Australia it makes more sense for such disputes to be
handled by the committee or a subcommittee as a first point of call with
the ability for them to refer it further if required. This is one part
of the constitution that I think probably makes more sense for local
bowling clubs etc then it does for Linux Australia which is essentially
an international organisation.
Reason Three:
I'm less sure that this is necessarily a reason that needs to be listed
in the constitution but the fact its there means we don't really need to
think about it.
As far as I can tell the constitution doesn't list anywhere else what
the committee and or any sub committees can equally do with the
membership data. Other then that they are members and as such can
request it.
Without the clause as currently written if say Linux Australia created
a sub committee to review a certain topic and say this subcommittee was
made up of non regular committee members, it isn't immediately obvious
under current or maybe future privacy laws whether a member of such a
sub committee or even a member of the current committee could use that
membership information to send out a questionnaire or survey related to
there review.
It would be reasonably simple to address this should that section be
removed by adding a line saying that the committee may approve use of
the data for sending other material relating to the association if it is
deemed reasonable. (Not in those exact words but that idea worded in a
way that ties in with the rest of the constitution).
Thanks
Simon Lees
> On Mon, Dec 19, 2022 at 3:45 PM Kathy Reid <kathy at kathyreid.id.au
> <mailto: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 <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
>> <mailto: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
>> <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 <https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations>
>>
>> [2]
>> https://legislation.nsw.gov.au/view/html/inforce/current/act-2009-007 <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 <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 <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 <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 <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 <https://lists.linux.org.au/pipermail/linux-aus/2017-December/023288.html>
>>
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