This site takes, to answer the questions asked during question time at board meetings in early 2016, which have not been answered during the meetings. It remains for documentation purposes here. This note has been added after the SGM, at which a new board was elected. |
. NOTA BENE - WORK IN PROGRESS
To Brain CAcert Inc. - CAcert.org Members Association - To Answers Answers01
Statutes, Policies and domestic Law as basis of valuation for all functions executed by the committee (board)
CAcert Inc. board wants to explain the correlation of several documents which are freely accessible for everyone. We - the current board - feel confident that all actions of CAcert Inc., it's members and the community at large must be strict in line with the jurisdiction of the hosting country which is New South Wales, Australia. The only way to step out of the current jurisdiction is the move to another country. All our doings must be covered by the law and the applicable acts. It is not sufficient to believe to do right. We must check and proof our actions and correct wherever we may fail.
Let's start a short review of the history of CAcert Incorporated.
CAcert Incorporated was setup on 2003-07-24 in New South Wales, Australia. The certificate of incorporation is shown as photocopy on https://wiki.cacert.org/CAcertInc together with some information important to respect. Please see the clause under Rules "You may change your Rules by special resolution at an annual general meeting or a special general meeting. You must lodge a copy of the altered Rules with the Department within 1 month of passing the special resolution. Changes to Rules do not take effect until the Department has accepted them."
Some time later the founders left Australia and CAcert Incorporated suffered. In the year 2007 several people tried to reactivate CAcert Incorporated. Robert, currently a board member, provided the active members with the constitution as known by the Office of NSW Fair Trading (OFT).http://www.fairtrading.nsw.gov.au/ftw/home.page This document is publicly accessible for everyone using this link: http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/TradeOffice_LodgingRules_4390_001-Jul2003.pdf
In the form "Application for Incorporation of the Association" and the "Rules for associations incorporated under the Associations Incorporation Act, 1984" the following option was chosen from 3 options.
The Association will adopt: |
[ ] Model Rules |
[X] Model Rules with changes |
[ ] Own Rules |
Therefor the statutes of CAcert Inc. are based on the "Modul Rules with changes" and have to be inline with these requirements.
"The objects of the Association will be Computer Related Security".
"The principal activities of the Association will be Computer Related Security".
Time went by and things have changed since then. During the years 2007 and 2008 many changes to the statutes have been made. All changes and alterations must be lodged with the OFT using form 6 "Notice of Alteration of Objects or Rules". You will find some of the lodged documents here: http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/
Let us now have a detailed look at http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/TradeOffice_AGM2007Reports_4392_001-Nov2007.pdf.
The document is a form 6 filled out by the public officer of that time. Line 3 is
The Association will adopt: |
[ ] Model Rules |
[X] Model Rules with changes |
[ ] Own Rules |
The attachment is the log of AGM 2007-11-27. The reader of that document will find the writing:
3. The board has the following mandates:
• CAcert operational affairs including finances for CAcert services;
• veto right on policy documents;
• last appeal on dispute resolution.
• Sub-committees: there is one Management Sub-Committee (M-SC)
with the members: Teus Hagen (chair), Evaldo Gardenali, Jens Paul and non-voting external advisor Ian Grigg.
The above text is lodged with the OFT and a valid amendment.
The second document which was lodged with the OFT is http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/TradeOffice_LodgingRules_4394_001-Dec2007.pdf, which is a consolidated version o f the statutes. Meanwhile we put into the SVN repository the answer to both documents given by the OFT. It is the document http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/CACERT_INCORPORATED_N3646038.pdf.
The document's header is filled out by the OFT. The date the document was received by the OFT is December 3rd 2007. The date processed by the OFT is given as December 4th 2007. The amendments are the lodged minutes of the AGM and valid and binding.
Now it should be clear that the legal entity CAcert Incorporated is based on the statutes which is a variant "Model Rules with changes", based on the Association Incorporation Act and the amendment of Association Incorporation Regulation of that time.
The current versions are found here:
Statutes of CAcert Incoporated: http://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/CAcert-Rules%20of%20Association.pdf
Association Incorporation Act 2009: http://www.legislation.nsw.gov.au/sessionalview/sessional/act/2009-7.pdf
Association Incorporation Regulation Act 2010: http://www.austlii.edu.au/au/legis/nsw/num_reg/aia2009air20102010238l11j2010784.pdf
That are no new news. It should be known to every member of CAcert Incorporated.
Are there any consequences for CAcert Incorporated? YES!
Let us have a look at the Association Regulation Act 2010:
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.
Here is written that the Commercial Arbitration Act 1984 comes in. Meanwhile this act was repealed and the Commercial Arbitration Act 2010 is in effect.
The Commercial Arbitration Act 2010 is found here: http://www.austlii.edu.au/au/legis/nsw/num_act/caa2010n61246.pdf
This Act starts with a note.
Note
Sections of this Act that contain a reference to the “Model Law” in the heading are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law. Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in New South Wales or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the “articles” of the UNCITRAL Model Law has been retained but converted to references to “sections” and articles containing more than one sentence have been re-formatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law.
Everybody may go and read the provisions of the act.
But the story continues.
The OFT performs regularily a survey to check if the provision of the association acts and the amendments match the interests of incoporated associations. the result of the last survey was published on Monday, November 2nd 2015. This brochure is here: http://www.parliament.nsw.gov.au/prod/la/latabdoc.nsf/0/2363f9197977f8bdca257f0000028d2f/$FILE/Associations%20Statutory%20Review.PDF
This brochure is worth to be studied in details. There will be a new version of the Association Incoporated Act in September 2016. The probably coming changes are published. And it is written the answer to the often heard question: What is a community? What is an incorporated association?
The answer is:
Incorporated associations enable community interest groups to develop and provide services to their members in a manner which is consistent with their purpose and objects and as set out in their constitution. Their legal identity is provided by the Associations Incorporation Act 2009.
To operate successfully CAcert needs a safe and secure base for all acitivities and *MUST* comply in this regards with the domestic law of the hosting country. It is possible to manage these tasks sucessful.
To raise awareness of those problems to our members is a task of leadership of the current board.