Policy-Discussion

[Ian G <iang AT cacert.org>]

On 25/03/2016 08:05 am, Marcus Mängel, Secretary wrote:

Dear all,

CAcert Inc. board asked the policy group to rephrase the DRP to meet the current changes of the Regulation and ArbitrationAct 2010 of NSW https://lists.cacert.org/wws/arc/cacert-policy/2016-03/msg00006.html.

Just for the record, I believe the board has completely misunderstood the requirements.  There is no requirement at law to adopt the model constitution.  Refer to Section 25 [a]:

25 Provisions of model constitution apply if adopted or if matter not addressed

(my bold)  The law requires the adoption of a constitution according to Schedule 1 section 6 [b], which specifies the need for a dispute resolution method (policy).

6 Internal disputes

The mechanism for the resolution of disputes between members (in their capacity as members) and between members and the association.

Back to Section 25 of the Act [a]:

(5) To avoid doubt, this section does not limit the way in which an association’s constitution may address a matter referred to in Schedule 1.

Job done.  The English is quite confusing and hard to read, but there is no doubt that CAcert Inc is empowered to choose its DRP, and it is at liberty to organise it as desired.

[a] http://www.austlii.edu.au/au/legis/nsw/consol_act/aiaa2016463/sch1.html
[b] http://www.austlii.edu.au/au/legis/nsw/consol_act/aia2009307/sch1.html

Board is encouraging everyone to take part in the discussion to make sure that CAcert meets all legal requirements that are neccessary to operate the CA.

On behalf of CAcert Inc. Board

There are many problems with this "request".  I doubt we'll get a serious answer from "board" but here's what I see:


0.  The board's understanding of need seems to rest on a false reading of the Regulation requiring the model constitution.  Not true.  As above.

On to UNCITRAL, as "maybe a good idea" ?


1.  You haven't said why.  OK, board has made it plainly apparent that UNCITRAL is what they want, but not why.  There has been no list of missing clauses or incompatible clauses, no examples of problems historical or predicted, no explanation of the benefit.


2.  There is no necessary understanding here as to what "compatibility" or "compliance" with UNCITRAL means.  E.g., do we have to be compatible with 90% of the clauses?  With no more than 10 contradictions?

I've had a quick reading of it and there is nothing in there that immediately leaps out of UNCITRAL that said "Oh we must do that!!!"  So I'd say we're likely comparable or compatible with UNCITRAL, if not equivalent.  We're not incompatible, it seems.

So, job done?


3.  The members of the board have made a series of pronouncements and acts that leads one to believe that, in the minds of the members of the committee, DRP can be overridden or bypassed by CAcert Inc.  Now, the truth of this or otherwise is tricky to find out because the CAcert way to establish the truth of a disputed statement is to go to Arbitration.  We are now in a circularity lock.  Much written elsewhere about this, and multiple SGMs are pending on these questions.

But the point that effects any change or review in policy group is that the truth of whether CAcert Inc accepts all arbitrations and all Arbitrators and all policies probably needs to be cleared up first - before we go changing DRP.  Which leads to the final point.


4.  Even if we figure out what it means, as we enter into a DRP review, there will be changes suggested.  As has been proposed by a couple of members, we probably need a Policy on Heads of Power more than we need to change DRP.  I agree with that.

So imagine we now have Policy on Heads.  Goes to DRAFT.

But, recall:  CAcert Inc retains a veto on any policy in DRAFT (so as to check that a new policy doesn't place the Inc into legal difficulties).  Having proposed a Policy on Heads of Power - what is the board going to do?

Do we think the board will just veto any policy it doesn't like?  And will keep doing so until it gets what it wants?  Maybe it's just more efficient for us to ask board what is the policy it will like and won't veto?



In conclusion -

• There is no requirement from the law to change DRP.
• I suspect there is little we can do with UNCITRAL until someone comes up with an actual flaw, or a clause list in UNCITRAL, or something to work with that is more clear than "must do".
  
• Finally, working on a Heads of Power would be a good idea - but we should bear in mind that *any policy change* now has to seriously consider what the board likes or doesn't like.

iang