[committee] Fwd: Fw: MOU for UCC

[Bob Adamson]

I should also point out that the guild could legally receive our 
funds/assets as a charitable institution, but writing the MOU to take 
advantage of this fact will not work because; 

1. Our dissolution clause was not written to include that possibility and 
would require a constitution change.
2. It would not solve the Guild's alleged problem of no administrative 
members being available to wind up the club properly. The Guild would 
still have to be able to demonstrate similarity of objects to the 
Commissioner before he/she releases the funds to them (which they can't do 
without some serious 'linguistic gymnastics').

Bob

On Thu, 12 May 2011, Bob Adamson wrote:

> 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.
> > > 
> > 
>