[committee] Fwd: Fw: MOU for UCC

[Bob Adamson]

According to Rachel Lee, Wayne has documents that show the Guild is 
incorporated with the Department of Commerce. I realise the Australian 
Business Register says something to the contrary, but the ABR also says 
that UCC is an "other incorporated entity", so I wouldn't put much stock 
in it. I did specifically raise this issue with Rachel at the meeting I 
had with her, and it was dismissed for the above reason.

Whether or not the Guild is incorporated under the Act is relevant, but I 
think the first MOU can be dismissed as weak/unenforceable even without 
pointing out this fact.

[BOB]

On Thu, 12 May 2011, Daniel Axtens wrote:

> Erm.
> 
> Rather than addressing the points in that (it will suffice to say that I accept unquestioningly pt 4, dispute pt 1, find pt 2 interesting and don't offer an opinion on pt 3), I now think it might be better to bring the concerns in my email to Rachel, and see what the guild thinks.
> 
> [BOB]: I believe you raised the status of the Guild with Rachel at some point? Can you provide any more details about the Guild's POV?
> 
> BR,
> Daniel
> 
> On 12/05/2011, at 1:12 AM, Jacques Chester wrote:
> 
> > Daniel;
> > 
> > I'm not a lawyer either, but the general rule of thumb is that you
> > can't use contractual terms to evade the clear meaning of an Act
> > of Parliament. Both the MOU and your own phrasing would probably
> > fail in this event.
> > 
> > Furthermore, the MOU is not a contract in my reading. It couldn't
> > bind on the future committee and there's no enforcement mechanism
> > save for being expelled in the guild. In the case that the UCC
> > was winding up I doubt this would seem like a very grave threat.
> > 
> > Without looking into the details of the guild arrangements, it is
> > also possible that the affiliation relationship with the guild
> > does not, of itself, constitute a contract. And even if it does, it
> > may not be possible to protect the guild from a future argument that
> > the UCC may be affiliated *only* according the the UWA Act and by-laws,
> > and that to add requirements to those by-laws through contract would
> > be ultra vires. The semi-public nature of the Guild makes this a very
> > murky area. Quite frankly I found administrative law to be incredibly
> > tedious and I believe I failed it quite heroically.
> > 
> > So to sum up:
> > 
> > 1. The MOU is probably not a contract and can't bind the UCC;
> > 2. Any contract based on using affiliation as consideration might
> >   fail as the UCC may, under existing by-laws, be entitled to it
> >   according to a process and not an exchangeable right;
> > 3. If the Guild tried to make the MOU a condition of affiliation it
> >   might be acting ultra vires; and
> > 4. A judge could easily ignore points 1-3 and rule that the Act
> >   overrides all this jiggery-pokery.
> > 
> > My advice to the committee is to talk to some MPs about amending one
> > or both of the conflicting Acts. I'm pretty sure they won't bite.
> > Minor procedural amendments like these go through on the nod quite
> > frequently.
> > 
> > Cheers,
> > 
> > JC.
> > 
>