Adopt 2025 NSW model constitution #47
Conversation
When doing the Not-For-Profit self assessment [0] required by the ATO,
we encountered the following question:
Question 3: Does the organisation have and follow clauses in its
governing documents that prohibit the distribution of income or
assets to members while it is operating and winding up?
As our current constitution lacks such a clause we answered "No", which
causes this to appear:
The organisation can still self-assess as income tax exempt if it
doesn't have these types of clauses in its governing documents,
provided it has not distributed any assets or income to members.
However, it has until 30 June 2025 to update its governing documents.
Failure to do so will mean that it cannot self-assess as income tax
exempt from 1 July 2024.
Our current constitution is based on the NSW Model constitution available
at the time. The NSW Model constitution has evolved since then and now
does have the required clause. This series of commits that adopts the new
NSW model constitution and customises it for Linux Australia, so that we
meet both the ATO and Australian Charities and Not-For-Profit commissions
requirement for Not-For-Profits.
This first commit imports the 2024-05-31 version of the NSW Model
constitution for organisations (the most recent at the time, found at
[0]). The model constitution is published as a Microsoft Word document.
In this commit it has been has been converted to markdown. The text is
unchanged.
[0] https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/statements-and-returns/reporting-requirements-to-self-assess-income-tax-exemption/nfp-self-review-return-question-guide#Prohibitingthedistributionofincomeorasse
[1] https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/model-constitution
The original Word document auto-numbered its paragraphs and then used those numbers when one clause needed to reference another. This auto-numbering system proved problematic as it shifted whenever paragraphs were inserted or deleted. This required renumbering across the entire document for every subsequent commit involving such changes. I'm not entirely sure how this worked within the Word document itself – perhaps Word automatically updated the references. However, this approach does not translate well to Markdown, which lacks automatic updating features. This commit addresses this issue by replacing the auto-sequential numbering with text-based tokens. These tokens remain static regardless of additions or deletions to the document, eliminating the need for constant renumbering of references.
There are a number of differences between the current constitution
this model constitution.
The following clauses from the model constitution were dropped,
replaced with something closer to the current constitution:
- Handling of new membership applications.
New Model Constitution says:
The secretary must refer an application to the committee
as soon as practicable after receiving the application.
Current constitution says:
As soon as practicable after receiving a nomination for
membership, the secretary must determine whether to approve
or reject the application or refer the nomination to the
committee which is to determine whether to approve or to
reject the nomination.
- Handling of renewing membership applications.
Current constitution says:
If the annual membership fee due in any calendar year is $0,
the secretary may notify members no later than 1 August that
they must renew their membership in writing, or cease to be
members from 1 October that year.
New Model Constitution lacks this provision.
- Where the membership register is kept.
Current constitution says:
The register of members must be kept in Australia.
New Model Constitution says:
The register ... must be kept in New South Wales
New Model Constitution says:
if kept in electronic form - must be able to be converted
to hard copy.
Current constitution does not have this provision.
In addition, the restriction on location the register stored at
is removed if it is electronc.
- Inspection of the membership register.
Current constitution says:
The portion of the register of members comprising names
of members and dates on which the person became a member
must be open for inspection, free of charge, by any member
of the association within five business days of receipt
of a written request by the public officer or secretary
of the association.
If a member requests that any information contained on
the register about the member (other than the member’s name)
not be available for inspection, that information must not
be made available for inspection.
New Model Constitution says:
A member may obtain a hard copy of the register, or a part
of the register, on payment of a fee of not more than $1,
as determined by the committee, for each page copied.
Information about a member, other than the member’s name,
must not be made available for inspection if the member
requests that the information not be made available.
- Election: Nomination of Committee Members.
Current constitution says:
[An election nomination] must be made in writing, signed
by 2 members of the association and accompanied by the
written consent of the candidate (which may be endorsed
on the form of the nomination)
New Model Constitution says:
[An election nomination] must be made in writing, and
signed by at least 2 members of the association, not
including the candidate, and accompanied by the written
consent of the candidate to the nomination
- Financial year:
Current constitution says:
commencing on 1 October and ending on the following 30 September.
New Model Constitution says:
commencing on 1 July and ending on the following 30 June.
The following clauses in the model constituton were kept despite being
different from the the current constitution:
- Members Calling Special General Meetings.
Current constitution says:
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.
New Model Constitution says:
The committee must call a special general meeting if
the committee receives a request made by at least 5%
of the total number of members.
- Proxy Votes.
Current constitution says:
Each member is to be entitled to appoint another member
as proxy at or in respect of a general meeting by notice
given to the secretary in writing no less than 24 hours
prior to the opening of the meeting.
New Model Constitution says:
A member cannot cast a vote by proxy.
The ATO Not-For-Profit self-assessment includes the question: "Does your
organisation have any charitable purposes?" Our current answer is "unsure."
To ensure compliance, it is advisable to seek registration as a charity
with the Australian Charities and Not-For-Profits Commission (ACNC).
According to the NSW Model Constitution webpage [0]:
"If your association is intending to seek registration as a charity
with the Australian Charities and Not-for-profits Commission (ACNC)
your constitution will need to set out the association’s objects or
purpose(s).
The model constitution without modification is not suitable for that
purpose.
This means an association wishing to register as a charity with the
ACNC must adopt its own constitution which includes objects or
purposes that meet the ACNC’s requirements for registration. That
constitution can be based on the Model Constitution but must
include an additional clause setting out all of the association’s
objects."
In addition this ACNC page recommends including a charitable purpose
to our constitution. The ACNC has a list of acceptable charitable
purposes. This one best fits Linux Australia (from [1]):
Example 1: scientific institution
An institution is set up to hold conferences and meetings to share
knowledge and exchange ideas on an aspect of engineering. Any
professional advantage the engineer members gain is only through the
institution's advancement of science. The institution's main purpose
is to extend the area of knowledge in this field of engineering.
The institution is a scientific institution.
The text the ACNC recommends we put in the constitution to describe the
above purpose is taken from [2]:
Example clause 2
The [organisation] is established to be a charity with the purpose of
advancing the [___industry___] in Australia, particularly in
[___location___] by:
- conducting and publishing research into improvements to the
processes used in the industry
- working with government at all levels to ensure that the
interests of the [___industry___]
- industry are represented in regard to the public decision-making
process, and
- providing a forum for all people engaged in the [___industry___]
to discuss best practice and enhancing the future of the
industry.
[0] https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/model-constitution
[1] https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/your-organisation/does-your-not-for-profit-need-to-pay-income-tax/types-of-income-tax-exempt-organisations/scientific-organisations
[2] https://www.acnc.gov.au/tools/templates/charitable-purpose-examples
|
Should "Objects of the organisation" be "Objectives of the organisation"? |
No, it's a legal term. I don't think it's meant to make sense to the common man. A theory that appeals to me is legalese is actually "magic incantations": https://theconversation.com/is-legal-jargon-actually-a-magic-spell-science-says-maybe-237134 |
|
Thanks @rstuart - I agree. Let's get this done. |
|
I think the change to remove the numbering of clauses and lists isn't the best. Will make it harder to refer to individual items in lists and makes it harder to read, while also not being real cross references (I'd hope the original Word doc version referred to was using real cross references). Perhaps these documents should be Sphinx doc (or similar) which have richer support for cross referencing? |
|
Okay, a web search for "Objects of the organisation" shows that is in common usage, how bizarre. Never mind. |
|
Firstly, thanks @rstuart and team for all the efforts that have gone into this. My comments are: Objects of the organisationLine 30 the word
MembershipThere is nothing in the Model Constitution or the Current Constitution limiting whether members must reside in Australia, or whether they can reside overseas. If we are going to go to the effort of a constitutional change then we may wish to reach clarity on this. My understanding is that some visa classes require the visa holder to be a member of a professional organisation such as the Australian Computer Society, so we should explicitly rule this out. Suggested wording:
Line 83 This wording does not match our process. Suggest reword to "The applicant becomes a member when the membership application is approved by the secretary in the membership register". This means we can move to another system with no constitutional changes, or revert to manual system (e.g. ticking the "approved" box on paper) with no constitutional changes. ElectionsThe clauses as they stand here do not match our current process because we currently allow a member to self-nominate for a position on the committee - that is, they need only 1 nomination rather than 2 nominations per the wording here. The model constitution is not clear on whether one of those 2 member nominations is the candidate themselves. We could alter CiviCRM's election module to accommodate this change in business rule, but I think it would be easier to change the wording to require 1 nomination from members rather than two. Given the dwindling numbers of nominations and members voting, I think this would be safe to ensure we can actually run elections going forward. ProceduresLine 370 This wording bothers me in that the committee must unanimously agree that a matter for discussion is urgent business. For example, there may be a committee member consistently absent, otherwise incapacitated etc, and the urgent business be about taking over their functions. Suggest reword "a majority of those present must agree that the matter is urgent business". It allows functioning, prevents deadlock etc. FundsFrom my knowledge of the internal workings of LA, I am satisfied that we would be in compliance with the constitution, and we generally don't deal in negotiable financial instruments (e.g. cheques or cash equivalents). Custody of records and booksLine 670 This section does not adequately deal with the fact that most of LA's records are held electronically. In 2025, I believe we should have a statement to that effect - e.g. "We note that most records will be held in electronic form in servers hosted in Australia. Paper records of the organisation will be held ...." [wherever they are held]. Financial windupThis reads well. -- END COMMENTS -- Inspection of records and booksThis reads well - it provides a balance of transparency and privacy - e.g. committee may choose not to disclose anything discussed in camera but is obligated to make certain records available. |
|
@puck
I think this concept has merits, but the better way to present it would be "Here's my PR with the format converted to Spinx doc" (or some other richer markup/down dialect). As it is, it looks like it was a heck of a lot of search and replace, so I'm OK with grep-able tags as a baseline. |
|
👍 I've read all the comments and diffs and I say merge it. (Edit: I mean - Present it at an SGM for membership approval) |
|
|
||
| _MemApp-4_: The committee must approve or reject the application. | ||
|
|
||
| _MemApp-5_: As soon as practicable after the committee has decided the application, the secretary must: |
There was a problem hiding this comment.
There is some inconsistency here introduced by a4d73c5. The application may be decided by the secretary, rather than the committee.
There was a problem hiding this comment.
There is some inconsistency here introduced by a4d73c5. The application may be decided by the secretary, rather than the committee.
Agreed. I will fix this in the next commit.
constitution.md
Outdated
|
|
||
| _MemApp-2_: The committee may determine that an application may be made or lodged by email or other electronic means. | ||
|
|
||
| _MemApp-3_: The secretary must determine whether to approve or reject the application or refer the nomination to the committee which is to determine whether to approve or to reject the nomination. |
There was a problem hiding this comment.
❓ Is there a need to provide the committee with the ability to review the secretary's decision?
There was a problem hiding this comment.
I think the final decision has to lie with the committee, not one person.
However, in practice with LA there one bunny doing the work (who is not always the secretary), they delegate contentious ones (like overseas) to the committee and approve the rest on the spot. I tried to allow for that here.
It would be a rare organisation that had the entire committee review every application. I suspect unheard of in one with as many members as LA. The existing wording in the model constitution must be good enough to cover that. I think I'll just revert to the original text.
|
|
||
| _MemReg-4_: A member may obtain a hard copy of the register, or a part of the register, on payment of a fee of not more than $1, as determined by the committee, for each page copied. | ||
|
|
||
| _MemReg-5_: No information about a member, other than the member’s name can be made available for inspection unless the member authorises that information to be released. |
There was a problem hiding this comment.
❓ How does this interact with MemReg-2-Ins, since the register contains additional information and must be made available for inspection?
There was a problem hiding this comment.
I confess I don't know. The clause in the model constitution is: MemReg-5: Information about a member, other than the member’s name, must not be made available for inspection if the member requests that the information not be made available. I changed it from opt out to opt in. I presume the original was prepared by lawyers and it worked, so this must work too.
constitution.md
Outdated
| * 6 months of the last day of the association’s financial year, or | ||
| * the later period allowed or prescribed in accordance with the Act, section 37(2)(b). | ||
|
|
||
| _MetGen-3_: Subject to the Act and subclauses _MetGen-1_ and _#MetGen-2_, the annual general meeting is to be held at the place and time determined by the committee. |
There was a problem hiding this comment.
Trivial inconsistency in the reference format (the # in _#MetGen-2_).
There was a problem hiding this comment.
Thanks. Will be fixed.
constitution.md
Outdated
| * The period commencing on the date of incorporation of the association and ending on the following 30 June, and | ||
| * each period of 12 months after the expiration of the previous financial year, commencing on 1 October and ending on the following 30 September. | ||
|
|
||
| Note: The Regulation, section 21 contains a substitute clause 44 for certain associations incorporated under the Associations Incorporation Act 1984. |
There was a problem hiding this comment.
❓ Does this apply? We probably want to either remove this line, or use the substitute clause, depending on whether it does apply.
There was a problem hiding this comment.
Looks like it doesn't apply as there was a "Associations Incorporation Act 1985", and LA was incorporated long after that. I'll remove it.
There was a problem hiding this comment.
For the record: I checked the Regulation, and rather than being anything important, section 21 just provides transitional arrangements for pre-2022 associations to have more flexibility in their financial year if their constitution doesn't cover it; since we're choosing a specific arrangement here it isn't relevant.
While I might be prepared to do the work to convert it, I'm not going to do the work if the answer is "No, not interested in using Sphinx doc". |
Yes, it looks clearer to me when the second "the" is dropped. I will change this unless a good reason against it comes up.
I suspect this will be a recurring theme in my responses: my experience with changing LA constitution makes me believe doing so is hard and slow. That means it's a good place for rules we are certain will never change, but for rules I'm not so certain about there are better places, such as LA's policy documents. To me overseas membership looks to be into the latter category, which is to say if we want clarity put it in a policy that we can alter later if we change our minds.
I've never thought about that before, and now I do it makes my brain hurt. I'm trying to think of arguments for and against, but I'm drawing a blank. Can you give some?
This clause is straight from the model constitution. If I thought it was clearly wrong I'd agree, but most registers, even paper ones, keep old members on file but somehow marked as "non-current". I assume "name is entered in the register" is some magic spell legal term (see my earlier response to @puck), that means "current members".
I'm not a lawyer I guess, but to me the only restriction on a nomination is it must come from a current member. There is no restriction on you nominating yourself, unless the constitution says otherwise. One of the reasons I think that is I did change this clause. It used to read: must be made in writing, and signed by at least 2 members of the association, not including the candidate.
The clause is straight from the model constitution, but now you've pointed it out it does seem odd. Most agendas I've seen have a "general business" item, which in this non-lawyer's mind renders the clause moot. I guess that means it would only apply to meetings that don't list "general business" on the agenda, in which case it I guess it must have been called to discuss a particular topic, and in that case unanimously does seem reasonable. I'm inclined to leave it.
Yes, I agree. I changed the membership register to allow for electronic records, but not this. I'll do the same thing here. |
I did consider using Sphinx when I did the numbering change for the very reasons you give. I decided against it because:
As for it being harder to read and refer to, I wasn't sure about that myself. Today, in this very conversation, people are using this new numbering to refer to items, and it's working great for me. |
|
The issue with line 370 is problematic when it only requires a majority to force urgent business.
In cases like this the term usually used is "supermajority" and should be something like 2/3 or 3/4 of the council.
It stops a cabal forming and is more likely to be seen by the members as a fair working group.
|
|
We are Linux Australia and as such our members should be Australian residents or Australian citizens. How we define residents can be vague but otherwise we are "Linux world" not Linux Australia. Allowing anyone from anywhere in the world is disingenuous and not what the charter of our organisation is about as "Linux Australia".
We should not include Admins 4 sub point 2:
* if the committee considers it would be prejudicial to the interests of the association for the member to do so.
This is too large a blanket clause and the point prior covers what should be private/confidential.
Members register
I note we have added a whole section into the model constitution, as is our prerogative.
I believe the following was changed without a vote or is a completely new addition.
I disagree wholeheartedly with the thrust of this clause. The membership must be available to be contacted to get around the council to be able to call a special meeting and if necessary, replace the council.
MemReg-5: No information about a member, other than the member’s name can be made available for inspection unless the member authorises that information to be released.
In other organisations I am/have been a member the register is available without even asking - it's in the member portal with limited access and limited information but it always has either a mobile number, a postal address or an email (or multiples of these) as chosen by the individual, but there is always at least 1 contact method available to be seen by members.
The council is not the gatekeeper of our information - they are the representatives of the organisation.
I also note our organisation states it "represents approximately 5000" people.
If this is truly reflective of the members register then we have an issue with MetSpec2 stating a minimum of 5% of the membership is required to call a special meeting.
How do we get the 5% if we only have names?
How many is the 5% truly??? That is currently 250 people and is likely not a true representation of our active membership.
When was the membership last checked?
Clause 6 states the membership information is not to be used unless it relates to the organisation. If that is not good enough for people then they do not need to be a member - this is not a secret society and the only people who can ask for information about members is members.
If someone shouldn't be a member they can be removed, as stated in section as stated in MemCes1 and MemDis.
(Removed unnecessary quote)
|
constitution.md
Outdated
| @@ -75,17 +75,16 @@ _MemReg-2_: The register: | |||
| - a residential, postal or email address, and | |||
| - the date on which the person became a member, and | |||
| - if the person ceases to be a member - the date on which the person ceased to be a member, and | |||
| * _MemReg-2-NSW_: must be kept in New South Wales: | |||
| * _MemReg-2-NSW_: if not elecronic must be kept in Australia: | |||
There was a problem hiding this comment.
Thanks @miiichael. I fixed this in 8c5da76, but sorry I forgot to acknowledge you.
Changes made: - Kathy Reid, in PrePur-1: remove superfluous "the". - Kathy Reid, in AdmCus-1: explicitly allow electronic record keeping. - Bardi Harborow, in MemReg-5: fixed inconsistency by reverting to the original model constitution wording. - Bardi Harborow, in MetGen-3: Fix trivial inconsistency in _#MetGen-2_. - Bardi Harborow, after AdmFin-1: Remove the "Note:" In addition I re-jigged wording on where we must keep our records. The NSW Model Constitution insisted we keep them "in New South Wales". This clashed with us keeping our accounting records in Xero, which is hosted in AWS in the USA. I've changed the requirement to "readily available in Australia". I hope that works. I'm not a lawyer.
|
@Mherstik before proceeding onto your individual points I'll restate what the primary goal is here: make LA's constitution acceptable to two federal government agencies, the ATO and the ACNC. Not a lot else matters at this point. The obvious route of just adding the relevant clauses to our existing constitution doesn't seem workable since the members have rejected it twice now. The next most obvious route it to put before the members something that have voted for before: adopting the current NSW Model Constitution. So we are doing that. Fortunately despite many re-arrangements and re-wording, the current NSW Model Constitution is substantially similar to the old one, so the only changes we need to the new one are the ones we made to the old one. To ensure we have the best possible chance of emerging with a constitution that is acceptable to the ATO and ACNC by the ATO's deadline they are all the changes I am going to be doing for this version of the constitution. Minor tweaks to wording for clarity are OK of course, but substantially changing the NSW Model Constitution is out for this version. That doesn't rule them our entirely. A separate amendment to introduce more radical changes should this constitution be adopted is always a possibility. You could for example create a 2nd PR that amends this version, and put it up for a vote at the same time we adopt this constitution.
Aside from this being a substantial change to our existing constitution, there are two complications:
I have some sympathy for this, but this exact clause appears both in our existing constitution and the new model constitution. If you want it changed put up a separate change to amend the constitution (old or new).
Only two changes have been made to the members register in the new NSW Model Constitution. No "whole section" has been added. The two changes where to make it clear Linux Australia's current practice of maintaining all its records electronically and available in Australia is acceptable under the new constitution, and to change the requirements for releasing all details we have on a member from opting out to opting in. The latter is because some of our members threatened us with privacy laws when you asked for their details to be released. Such threats are less likely to have serious impact on Linux Australia if they have explicitly opted in to having their information released.
It comes from new NSW Model Constitution. It wasn't in the old constitution.
I sympathise and agree. But I publish my email address and phone number on my wiki page, and that makes me downright weird in today's world. Also my opinion doesn't count for much, as it's just one vote. I need a super majority of votes to get the constitution accepted. Given the reaction the council got to requests for release on membership information, I suspect I'm in a very small minority. Right now I'm after every vote I can get, so I'm not prepared to risk a change I'm pretty sure would be very unpopular. Again, if you want this changed, put up a amendment so we can vote on separately. I promise to vote "yay" if you do. |
I very strongly disagree with this assessment:
LA should definitely allow international memberships.
While (I believe) I see your point here, I'm not convinced access to everyones details is actually necessary for that purpose - though it certainly would make the process smoother.
The 5% appears to come from the model constitution, so I find that an interesting point you have raised here. I appreciate stuarts wish to keep diff against the model as small as possible - I would support a (decrease) in this number or refining the number in some way if it was possible. |
|
I suspect the 5000 number is an historical estimate for marketing purposes, derived by adding up the number of people subscribed to SLUG, LUV, Humbug, PLUG etc plus LA. Why do I suspect this? Because that’s the number I used to promote engagement for linux.conf.au 2008. I’d suggest that today the number of active members would fairly easily be defined via the membership system. - Donna Via mobile. On 1 Feb 2025, at 15:46, Karl Goetz ***@***.***> wrote:
We are Linux Australia and as such our members should be Australian residents or Australian citizens. How we define residents can be vague but otherwise we are "Linux world" not Linux Australia. Allowing anyone from anywhere in the world is disingenuous and not what the charter of our organisation is about as "Linux Australia".
I very strongly disagree with this assessment:
We have close ties with other, internationally based, groups.
LA members can move overseas; long or short term
Individuals planning to move to AU might like to sign up in advance to 'get familiar with the groups'
LA should definitely allow international memberships.
The membership must be available to be contacted to get around the council to be able to call a special meeting and if necessary, replace the council.
While (I believe) I see your point here, I'm not convinced access to everyones details is actually necessary for that purpose - though it certainly would make the process smoother.
I also note our organisation states it "represents approximately 5000" people. If this is truly reflective of the members register then we have an issue with MetSpec2 stating a minimum of 5% of the membership is required to call a special meeting. How do we get the 5% if we only have names? How many is the 5% truly??? That is currently 250 people and is likely not a true representation of our active membership.
The 5% appears to come from the model constitution, so I find that an interesting point you have raised here. I appreciate stuarts wish to keep diff against the model as small as possible - I would support a (decrease) in this number or refining the number in some way if it was possible.
—Reply to this email directly, view it on GitHub, or unsubscribe.You are receiving this because you commented.Message ID: ***@***.***>
|
|
I have a couple extra comments here:
|
|
Close ties, people moving and "try before you buy" are all irrelevant.
If an Australian citizen moves overseas - still covered. If they are resident in Australia and another countries citizen - covered.
But let's take it back a step.
What is the purpose of being a member of Linux Australia?
To get to vote on the direction and leadership of the organisation. That's it - that's the purpose.
Next step - What is the purpose of the organisation?
From the About page "Linux Australia is the peak body for Open Source communities in Australasia. Linux Australia represents Australasian users and developers of Free Software and Open Technologies, and facilitates internationally-renowned events"
From the Value page "As an organisation, we aim to represent and assist the groups and individuals who make up the Free Software and Open Source communities in Australia."
If you want to change our values and purpose, then you have a whole other issue, and this was asked and answered a few years ago when people proposed changing our name.
Not to mention we will need to apply to the Commissioner of Fair Trading to change our purpose and that's only if a Special Resolution is passed by at least 75% of the voting members (s39 of the Associations Incorporations Act NSW).
Let's not even get into how that may affect our status as we will be changing our purpose and international organisations have slightly different responsibilities and compliance.
While people can be from overseas according to the legislation and even be on the council/committee (committee is the legal term the legislation uses) we need to ensure at least 3 members of the committee reside in Australia and must have a public officer who's a resident of NSW and address (not a PO Box) in NSW.
That doesn't mean Australian citizens but must live and (likely) be a tax resident of Australia. That's because reside means something legally rather than just live here and the ATO's definition is kind of the standard.
FWIW - these kinds of changes need to be agreed to by the members and a blanket "we're updating our constitution so you agree to ALL these changes" may be found invalid.
That means we may need a number of resolutions - some (or maybe 1) that are purely updating to latest legislation requirements but not changing the purpose of the org and anything major.
Then others that have direct effects on the purpose and working of the org that are different to the model.
The ACS found this out the hard way when the committee was taken to court by some of their members.
As it is we are a Tier 1 organisation and im not sure how that can effect our status. I'm pretty sure our Treasurer already deals with paperwork for us with Dept of Fair Trading or ACNC as we have to lodge our audited accounts summary every year. (Thanks mate - I know some of what you do even if other don't.). Maybe he knows and cares to weigh in?
We can also adopt the model constitution by way of reference and only remove/replace what we want (s25 of the Act) and if we fail to address a matter then the model constitution will apply anyway.
Do we have any other people who have studied the law and want to weigh in on this with their opinions?
Happy to take it off list and give some more feedback to council and members after a confab to assist as to what their position may be.
(remove unnecessary quote)
|
|
So:
1. What purpose / value do members from other countries give / provide? I’ll walk back a little and say - they can be members but if someone puts an address outside of Australia then the secretary should enquire as to why membership is sought before approval is provided.
2. I will strongly advise Council to remember that our purpose is lodged with the Dept of Fair Trade and as clearly stated we are for Australia/Australasian Open Source and Free Software. Changing the organisations' purpose and goal must be approved by the membership (with 75% majority) and the DFT.
While allowing members from overseas doesn't violate it, it also must be explored as to how an overseas membership is required and aligns with our goals. Someone wants to host an event in Australia and wants our help - sure but they don't need to be a member.
The only reason to be a member is to vote for the council and therefore the direction of the org.
3. We don’t have a valid membership register as we don’t truly know our members. It got severely inflated as we never checked our register and now it seems to be waaay smaller. Got it.
(remove unnecessary quote)
|
This comment was marked as off-topic.
This comment was marked as off-topic.
This comment was marked as off-topic.
This comment was marked as off-topic.
Several people have mentioned this 5% figure. The actual number is "5" not "5%". The number is the same in this proposed constitution, the model NSW constitution and the current constitution. The wording in the NSW Model Constitution we are adopting, which I have a carried across unchanged, is: The quorum for a general meeting is 5 members of the association entitled to vote under this constitution. The FYI, I've just filed the NSW Fair Trading report (as I do every year), which has a "number of current members" field. I just take it from CiviCRM (as Kath explained above). This year it was 993 members. |
Hi @rstuart , The context of the discussion was members wanting to replace a 'bad' committee and how many would be required to make that happen so S29.2 is the relevant part. |
Thanks for the clarification @goetzk - yes, this is the one I was referencing in my comment, apologies for not being clear. The balance we need to strike is one between effective functioning and the ability for a poorly performing Council's actions to be limited or changed. We need enough members to hold an SGM that spurious or vexatious persons can't convene one without significant effort and a low enough threshold that if a Council is ineffective, the membership can convene to do something about it. If the number is too high, it becomes difficult to take action against an ineffective or poorly performing Council via convening an SGM and if the number is too low it makes it too easy to disrupt an effectively functioning Council with spurious matters (by convening an SGM). My recommendation to Council is that number should be 50-ish - it's about 5% of the 993 figure @rstuart mentioned earlier, and is about half of the number of people who regularly vote in elections. |
|
In response to @Mherstik:
Time and time again again throughout history, we have learned that diversity, multiple perspectives, plurality of thought and inter-disciplinary skills set groups up for success. International members - for example the many members in Aotearoa New Zealand who have run conferences such as linux.conf.au, Python NZ etc - have contributed significantly to Linux Australia's objectives. We should not mete different obligations on international versus domestic members. If we are going to ask each potential member what their interest is in LA, then that should be asked of every potential member.
Having international members is not at odds with this objective. There's an underlying false assumption here that having international members benefit from the activities of Linux Australia diminishes the benefits to Australian free and open source software and their communities. Without international members, we wouldn't have any events in Aotearoa New Zealand, which have delivered financial, community and other benefits to the Australian community.
If they want access to LA bank accounts and LA insurance, yes they do.
No - if you are running an event, you need to be a member of the Association to gain access to bank accounts, and for LA insurance to cover the event you're running under the event subcommittee. I also doubt LA would give me access to run social channels if I weren't a member, either. So, if we have folks from Aotearoa New Zealand running LA-auspiced events in Aotearoa New Zealand, they need to be members to have access to bank accounts and for insurance purposes. So, if we want LA events to happen in other countries, we need to allow international members.
Linux Australia implemented a new Membership DB in 2018, which was CiviCRM backended on to WordPress, migrating from the custom PHP solution which had generously been written by one of our Members and was in use for over a decade. During this migration, a renewal process was undertaken, as renewal wasn't a feature of the original PHP MemberDB. Yes, we ended up with fewer members on the register. The renewal process itself wasn't perfect - as MemberDB on CiviCRM isn't perfect. I'd love to see this process improve, but I don't have the capacity to take this on - so I'm not doing to throw shade at the people who are working with it. Kathy Reid [personal reference: 2025-MH-0824] |
If this level of voting engagement is steady at agms then I agree 50 is a good While tempting to use some percentage of a previous vote I feel it adds unnecessary complexity. |
|
@goetzk: I'm referencing "Model-Constitution-for-Associations-2024-5-31.docx", the 5% comes from the SGMs section: Ah, sorry for the confusion. @KathyReid: I am strongly advising Council to include my previously suggested amendments that explicitly allow international members. I'm pretty convinced that if the constitution doesn't forbid it then it's allowed, so adding it is redundant. However, I ain't a lawyer, and I can't see how LA could conduct some of its current activities (auspicing Drupal Singapore in particular) without international members, so I'm coming around to the view that your suggested change is prudent. For those who aren't aware of how Linux Australia works, the executive doesn't run the conferences Linux Australia auspices. Volunteer teams do that [0][1], but they do it as sub-committees of Linux Australia. This means the executive delegates some of its powers to the subcommittee, powers like authorising contracts, hiring venues, paying suppliers, and appointing yet more volunteers to jobs and feeding them. The extent of their powers is largely controlled by their bid document and their budget. ComDel-1 requires sub-committees to be made up of members (the current constitution has a similar clause). Bearing in mind Linux Australia auspices conferences in other countries, I don't think that could work if Linux Australia didn't allow international members. @KathyReid: explicitly state that there are no benefits to visa or citizenship status entailed in membership. The reason this is important is that, for some Australian visa classes, maintaining membership of a relevant professional society is a requirement of the visa - for example 482 Temporary Skilled Migration. We want to make sure that people don't register for membership thinking it assists in compliance with their visa conditions when it does not. I still don't understand why whether we are a professional society is important, and why avoiding it in the future is a priority. However, let's put that aside for one moment and deal with your last point: "We want to make sure that people don't register for membership thinking it assists in compliance with their visa conditions". If this is about communicating that fact to new members, the constitution is about the least effective place for it. Who reads the constitution in detail before applying? A far more suitable place is the sign-up page itself, as a nice big warning. Failing that, perhaps have a "Membership Page" explaining what membership gets you (eg, the ability to create and run conferences), or explicitly doesn't give you in this case. That said, to me, the constitution is mostly a document proscribing the behaviour of LA's members, and in particular, the executive. It gets that control because those people must "opt in" to being members. We might be able to prevent them from mentioning Linux Australia on their visa application (although I have no idea why we would do that), but we can't control the behaviour of others as they didn't get to opt in. Which is a long-winded way of saying if some other organisation wants to make membership of Linux Australia mandatory as a visa condition, I don't understand why anything we might say in the constitution can prevent them from doing that. And again, if we want to discourage it, a "Members Page" spelling out the policy seems a far more effective place for it, if only because it's more visible. @Mherstik: Not to mention we will need to apply to the Commissioner of Fair Trading to change our purpose, and that's only if a Special Resolution is passed by at least 75% of the voting members (s39 of the Associations Incorporations Act NSW). Thanks for pointing that out. As I'm sure you are aware we have to apply to the Commissioner of Fair Trading to change our constitution, and that also has to pass with a 75% majority, so the application was going to happen anyway. However, it might be worth our while to change our objects as a separate motion and then go on to change the constitution. The two motions seem redundant, as the federal government (via the Australian Charities and Not-For-Profit Commission) effectively insists we put the objects in the constitution. But two motions to ensure everyone is happy seems prudent. [0] Linux Australia runs so many conferences now that it is completely beyond the capabilities of any part-time volunteer team (which is what the Linux Australia executive is) to run them all. Thus, sub-committees of Linux Australia's members running conferences is an absolutely necessary arrangement if Linux Australia is going to continue its current level of involvement in open source activities. [1] The executive not running conferences has been muddied in recent years by members of the LA executive being highly involved in running Everything Open and LCA. On the executive, we viewed this as the committee members concerned wearing independent hats, with a Chinese wall between them. As an involved person, I don't think I can have an unbiased view of how effective that Chinese wall was, but in the end I don't think it mattered. There wasn't a lot of choice. It was either that or the conferences didn't happen. |
|
@rstuart if we are trying to just get it passed then minimal change can be done to the model constitution, if any. Best of luck. |
|
@Mherstik: It's close enough for our purposes and we can just state "we adopt the NSW model constitution except for X, Y & Z". Then it will always stay up to their model. I'm pretty sure you have to adopt a specific constitution, not one that can change at the whim of a third part (even if that third part is the NSW government). If the NSW government changes their constitution and we want to update ours to reflect that we have no choice but to go through this all again. |
|
@Mherstik: It's close enough for our purposes and we can just state "we adopt the NSW model constitution except for X, Y & Z". Then it will always stay up to their model. I'm pretty sure you have to adopt a specific constitution, not one that can change at the whim of a third party without notice (even if that third part is the NSW government). |
Added _MemGen-3_.
|
@rstuart: responding to your comment:
|
|
@rstuart - An association may adopt the model constitution, and any constitution which does not cover something in Schedule 1 will have the model constitution apply for that anyway. E.g if we don't have a section that covers "management of funds" then it will be brought in under Schedule 1. |
|
@Mherstik: Please see https://ww.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/about-the-constitution I looked at the page. It does seem pretty clear. Its lists our options as one of the following:
What we are doing here matches option (2), so we are good, I hope. It does say the constitution we adopt do then has to be accepted by them, so keeping the changes we make to the model constitution to a minimum seems prudent. What you are proposing doesn't look to match any of the options listed, but I might be misunderstanding your proposal. Is it "use the current model constitution published by NSW Fair Trading, with the following modifications ..."? Maybe you are saying we can omit the clauses we will are happy to inherit from Schedule 1, but that doesn't look to be an option either. The page doesn't say if we don't have the financial affairs section we get it from schedule 1. It says, quoting: "The constitution must address each of the matters referred to in Schedule 1", which implies to me we must have a financial affairs clause. Maybe you are looking at the act and it says something different? I haven't read it. |
|
Some people raised the issue of having non-Australian members, and Russell has already incorporated that change. We do hold conferences in for instance New Zealand, and I think it would be great to also have kiwis on the council. That broadens perspective, as well as increase the pool of volunteer talent. If it doesn't cause hassle, I'd like to see the option of foreign council people addressed as well in this change. Some positions may need to be reserved for AU based people, perhaps treasurer for having knowledge on AU accounting and tax issues (although some may have lived and worked here and know well how things work, or just research it), and perhaps the president for different reasons. I don't know. And yeah we also support differences in places like Singapore now, so in due course the same might apply there. But if we enable NZ, others should be either easy to add, or already be included when the time comes. |
|
A question. |
Indeed, "adopting a model constitution" is like using a template document: you copy it and then use it. |
|
Before proceeding, I want to make clear something I should have made explicit before. What I say here purely reflects my views. None of it has been vetted or voted on the the Linux Australia executive. As a member of the Linux Australia executive I can authoritatively say this is true for all comments here. None of the authors had their comments approved by the council before posting. Obviously my presence here obviously means you know my thoughts and positions of one member of the executive, but I only have one vote on the executive and I have been on the losing side of a few votes before. So fair warning: don't assume my comments here reflect the views of the LA executive. They may surprise you (and me). @arjenlentz: A question. As what type [0] of NFP does LA want to be assessed? They all seem rather precarious for us. One of the commit messages gives the category I believe is the closest match to LA. I doesn't look precarious to me, in fact it looks like a remarkably good fit. |
Ah, must have overlooked that one. Thanks. Indeed the Science category seems like the most suitable (and perhaps only possible) type. As for the exact proposed text in relation to that, perhaps a few more generic bits of phrasing such as "software, hardware, network and security engineering" sprinkled in there, which will both reinforce the science/engineering angle, as well as not tie us down in the very specific open (source) space. Some of the events we currently support can otherwise already be regarded as out of scope (DDD, PurpleCon) because they don't specifically focus on open (source or otherwise) and don't require talks to be related to that angle (as far as I am aware). I'm of course all for retaining promoting and encouraging open source as the primary objective for LA, but in terms of the NFP it's very important to stay well away from the borders. We don't want anyone to question our scope based on a particular event we support, which we then have to start defending based on a percentage of open (source) talks or something complicated. If you'd like such a addition/modificaton from me based off the existing text, I'm happy to do so, but I first want to put it out there for consideration. |
That's persuasive. Given our recent history, making a quick change to the constitution isn't something we could pull off even if someone was batting us over the head with it. For those who don't know, while it's true PurpleCon is security focused rather than purely open source focused, it's a purely volunteer / community driven event. If they restricted themselves to security problems in open source software I don't think they would have as much to talk about and of course all their results are openly published. So I'm inclined to move in the direction Arjen suggests. To get the ball rolling I propose this change. Currently, the objects say in a number of places: I propose to change all instances to: |
Given that this text is quite long, if there's more than one use of it, perhaps we should define a term (maybe an acronym or initialism) and then use that? As for what that term should be, I think we need to key in on the essential point: we're a community of people performing philanthropy: giving our time and skill rather than money. Some keywords that might be useful:
Hmm, now that I think about it, how does “philanthropic open collaboration” sound? |
We need to be very careful with our phrasing and choice of words, as the definitions as per the ATO types are very narrow, and they are quite clearly that particular things make you do outside. We really can't be too vague on the ATO end of things; we can only keep our options open in areas they don't care about. I hope that makes sense? |
|
I've added a new commit that reflects @arjenlentz and @kurahaupo thoughts, and adds a change suggested by LA's secretary. |
Changes: - Arjen Lenz, PreObj-1: Expand objects in line with Arjens suggestions. - Neill Cox, MemApp-3 & MemApp-4: Neill pointed out the NSW Model constitution wording is very different from how membership are processed in practice. It seems to be orientated towards the secretary receiving paper membership applications by mail, which are then must be passed onto the committee (presumably along with all other correspondence). LA has a membership web site, which flags new memberships. Someone, perhaps not even a committee member, then brings them to the attention of the committee, who authorises accepting or rejecting them. The new wording reflects that process.
When doing the Not-For-Profit self assessment [0] required by the ATO, we encountered the following question:
As our current constitution lacks such a clause we answered "No", which causes this to appear:
Linux Australia is now classified as a Not-For-Profit organization. If that status is ever revoked, Linux Australia will be required to remit 25% of its future earnings as tax. This move by the ATO appears to align its definition of a Not-For-Profit with that of the Australian Charities and Not-For-Profit Commission (ACNC). Therefore, it seems prudent to adopt other clauses required by the ACNC. This may facilitate future registration as a charity. Being a charity comes with many advantages, such as discounts from banks and payment processors.
Our current constitution is based on the NSW Model constitution available at the time. The NSW Model constitution has evolved since then and now does have the required clause. This series of commits that adopts the new NSW model constitution and customises it for Linux Australia, so that we meet both the ATO and Australian Charities and Not-For-Profit commissions requirement for Not-For-Profits.
[0] https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/statements-and-returns/reporting-requirements-to-self-assess-income-tax-exemption/nfp-self-review-return-question-guide#Prohibitingthedistributionofincomeorasse
[1] https://www.fairtrading.nsw.gov.au/associations-and-co-operatives/associations/starting-an-association/model-constitution