[Linux-aus] Constitutional background and towards a reformed constitution for Linux Australia
Colin Fee
tfeccles at gmail.com
Wed Jan 4 16:01:06 AEDT 2023
Such clauses as 2.7.1 were written when digital communications methods were
in their infancy. An association rules needed a means of providing members
a check-and-balance mechanism to allow the membership to call a special
general meeting should the need arise, using traditional methods of contact
e.g. postal mail etc.
I agree that nowadays, the (an?) email list would suffice.
On Wed, 4 Jan 2023 at 15:32, Paul Esson via linux-aus <
linux-aus at lists.linux.org.au> wrote:
>
> Only First Name and Email are requirements when registering or updating
> details on linuxaus, This seems to be at odds with 2.7.1 which states:
>
> > The public officer or the secretary of the association must establish
> and maintain a register of members of the association specifying the name
> and postal or residential address of each person who is a member of the
> association together with the date on which the person became a member.
>
> it also makes it hard for the request Marcus made to be satisfied.
>
> I agree with Matthew's sentiment that this mailing list should be
> sufficient for people to voice their concerns or rally members around a
> cause, I would be in favor of any change that reflected how Linux Aus
> operates at the current time and expectations that members have of the
> organisation in respect to privacy and the data it has about them.
>
> Paul Esson
>
>
> On Wed, Jan 4, 2023 at 2:08 PM Matthew Lye via linux-aus <
> linux-aus at lists.linux.org.au> wrote:
>
>> I've been following this conversation and agree with Marcus's comments
>> with one slight deviation regarding this point:
>>
>> > 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).
>>
>>
>>> While I don’t think you envisage it being abused, it must never be up to
>>> be leadership to approve or deny the ability of its members to discuss
>>> things. Especially as it can be used to limit discussion of issues with the
>>> leadership or the organisation’s direction.
>>
>>
>> Would it not be fair to consider the ability for the members to
>> communicate within the membership group met by providing the mailing list?
>> Asking for additional details for the purposes of contacting members seems
>> redundant and highly prone to abuse.
>>
>> -Matthew Lye
>>
>> <No trees were harmed during this transmission. However, a great number
>> of electrons were terribly inconvenienced>
>>
>>
>> On Wed, 4 Jan 2023 at 08:42, Marcus Herstik via linux-aus <
>> linux-aus at lists.linux.org.au> wrote:
>>
>>> I have a small comment or 2 below, but the general consensus from the
>>> boards and committees I have been on before is that the constitution should
>>> allow the leaders to act while ensuring accountability and transparency to
>>> the constituents that make up the organisation.
>>>
>>> If the members have issues there must always be a way to organise and
>>> remove members.
>>>
>>> >
>>> > On 2 Jan 2023, at 5:41 am, Simon Lees via linux-aus <
>>> linux-aus at lists.linux.org.au> wrote:
>>> >
>>> >
>>> >
>>> >> 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.
>>>
>>> Definitely best practice to stay as close as possible without good
>>> reasons to deviate.
>>>
>>> >> 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.
>>>
>>> This must remain to ensure integrity of the organisation or we risk what
>>> happened with the ACS.
>>>
>>> >
>>> > 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.
>>>
>>> So far I have not been contacted by anyone on council regarding
>>> resolving my dispute.
>>> >
>>> > 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.
>>> While I agree it’s a weird process, especially for a national
>>> organisation, it needs to be able to be escalated as well.
>>> Most organisations have a stated jurisdiction, and therefore NSW is fine
>>> for that.
>>> However, having a justice centre be the arbiter is likely a waste of
>>> their time in the first instance.
>>> The legal fraternity takes a dim view of organisations wasting their
>>> time with minor disputes, especially if they can be dealt with internally.
>>>
>>> >
>>> > 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 than that they are members and as such can request it.
>>>
>>> We are all equal members, some just have more responsibilities than
>>> others.
>>> We should also consider incorporating if we aren’t already. If I am not
>>> on the council after election they should talk to a lawyer as to why.
>>>
>>> > 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.
>>> >
>>>
>>> Members of the org can ask for membership information - there is no
>>> restriction on the constitution as to reasoning. Therefore, if they are a
>>> sub-committee they can request it from the secretary and get it.
>>> Use is covered by disciplinary actions available.
>>>
>>> > 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).
>>> >
>>>
>>> While I don’t think you envisage it being abused, it must never be up to
>>> be leadership to approve or deny the ability of its members to discuss
>>> things. Especially as it can be used to limit discussion of issues with the
>>> leadership or the organisation’s direction.
>>>
>>> > 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
>>> >
>>> >
>>> >> linux-aus-unsubscribe at lists.linux.org.au
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>>> >
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>>>
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>>
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>
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--
Colin Fee
tfeccles at gmail.com
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