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Roger Clarke's ACS Constitution - Principles

A Constitution for the Australian Computer Society
Background and Principles

Discussion Draft - Versions of 27 Nov 2019 and 18 Dec 2019, 7-25 Jan, 15 Feb, 20 May 2020

Responsibility for authorship is adopted by an open-ended Working Group

This document is intended to be widely promoted to the ACS membership, and to guide the formulation of an alternative Constitution to that offered by the ACS executive

Roger Clarke

This document is at http://www.rogerclarke.com/SOS/ACS-CP.html

Abstract

The scale of operations of the Australian Computer Society (ACS) is such that it is long overdue for a switch of corporate form away from an incorporated association, most likely to a company limited by guarantee.

The ACS executive initiated such a change during 2019. However, the Constitution it put forward was radically different from the existing Rules of Incorporation. Worse still, the governance structures and processes in that document were highly inappropriate for a professional society.

This document provides a basis for the development of an alternative Constitution. It outlines the nature of a professional society, and proposes Principles to guide the design of governance structures and processes. These lay a foundation for the development of structural arrangements, processes and other features of an appropriate Constitution.

Contents

Background

The Australian Computer Society (ACS) was established in 1966 through the federation of multiple pre-existing associations organised on State and Territory lines. The natural organisational form at the time was an incorporated association, and the ACT was chosen on the basis that ACS was to be a national organisation.

The scale of operations has become substantial, with professional membership fees alone delivering several million dollars p.a. States and Territories become uncomfortable when incorporated associations reach such a size. The mainstream form for larger associations has become the 'company limited by guarantee'. During 2019, the ACS brought forward a proposal to make that change.

To effect that change, a company Constitution needed to be established. However, instead of adopting or adapting the features of the existing Rules of Incorporation, the ACS executive put forward a Constitution that is well-suited to a for-profit corporation rather than to a professional society. An email was sent on 3 July 2019 exposing the document to members. However, due to an administrative error, over 10% of voting members did not receive notice of it.

During mid-2019, a 1-hour address ('webinar') was available to members, and meetings were held with Branch Executive Committees plus at least one Branch members' meeting; but concerns were waved away, and criticisms were ignored. Several Branches combined to force a Meeting of the Congress, but the concerns expressed at that venue were also ignored.

On 3 October 2019, 22 days' Notice of a 'General Meeting' was sent to members. A single motion was to be put, which purported to be primarily about the change of form, and some changes to the wording of the Objects. For a proportion of voting members, this was the first that they had heard of the proposal.

Further, no information was provided about the very substantial changes to the governance structure and processes, and no arguments against the motion accompanied the Notice. The ACS executive blocked publication to the membership list of arguments against the motion.

A campaign was conducted to attract proxies against the motion. Information is provided on a separate page about the the 'Rescue Your ACS' campaign - Part 1. Despite endeavours by a team of senior members, it is estimated that the arguments against the motion reached only 500-600 of the c. 10,000 voting members. Yet 163 proxy-votes were cast against the motion.

At the Special General Meeting on 25 October 2019, a further 23 personal votes were cast against the motion. However, the ACS executive declared that it had amassed 430 proxy-votes and a further 131 votes cast in person at the meeting. As the resolution required 75% approval, passage depended on 561 of the 747 votes being For the motion. The ACS executive declared the votes For the motion as being precisely 561 votes, and that the motion was accordingly approved.

To prevent the takeover, it was necessary to mount a case in the Federal Court. The law provides no basis for challenging the commercialisation of an association. However, the ACS executive had committed a large number of procedural irregularities in relation to its campaign between July and October 2019. This included wrongful disallowance of two proxies which, if they had been allowed, would have swung the vote and defeated the motion. I prepared copious documentation, and located a solicitor and a barrister with expertise in the relevant areas of law. They agreed that I had a strong case, and we filed. I used a crowdfunding call to gather some funding to support the process. Further information is provided on a separate page about the the 'Rescue Your ACS' campaign - Part 2.

In the meantime, the ACS executive gave 15 days' Notice of the Annual General Meeting on 29 November 2019, and included on the Agenda a motion to adopt the Minutes of the Special General Meeting of 25 October. The draft Minutes contained several errors (including the omission of two Branch Committee members who had attended the Meeting, one of whom had exercised several proxy-votes as well as his own). In addition, given that the validity of the meeting was subject to a court challenge, it was inappropriate for the Society to approve the Minutes.

Proxies were accordingly sought against the motion to adopt the Minutes of the 25 October Special Meeting. Information is provided on a separate page about the the 'Rescue Your ACS' campaign - Part 3. This resulted in 174 proxies against the motion. However, at the Meeting on 29 November, the ACS executive unveiled 213 proxies in favour. This is a remarkable number, given the normally very low level of interest in motions to adopt meeting Minutes. Together with the in-person votes, the Minutes were passed by 241 to 177. The passage of the motion was of course largely symbolic.  The key issue was the serious and widespread dissatisfaction among members with the ACS executive's behaviour.

On 23 December 2019, the judgment was handed down. It was comprehensively in favour of our submissions, overturned the vote, and declared the General Meeting invalid. Further information is provided on a separate page about the 'Rescue Your ACS' campaign - Part 4. The case cost the ACS well in excess of half-a-million dollars.

The campaign of October-December 2019 was of necessity negative in nature, because the process had to be halted if the organisation was to continue to have the form of, and embody the values of, a professional society. However, from the outset, the leaders of the campaign recognised the importance of switching to a positive approach as soon as practicable.

Engagement was sought with the ACS executive, with a view to establishing a 'constitutional commission' to re-work the document. However, the ACS executive resisted a long succession of endeavours on our part. In all respects, they moved extremely slowly during the first half of 2020. It turned out that they had no Plan B. They had assumed that they would win the vote in October, and become a company before the end of 2019. Instead, they remained an association, and half of the Management Committee positions fell vacant on 31 December 2019. It took until mid-March to fill any of those positions, and until late May to fill the last of them. In addition, during March-May 2020, measures to address the COVID-19 pandemic included substantial closedown of the economy. With the 11-person Management Committee stalled, the President called a meeting of the 24-person Congress for 19 June 2020.

Prior to the closing of proxies for the Special General Meeting, an Outline of Members' Requirements was published, on 20 Oct 2019. The purpose of the present document is to articulate that outline. It does this by first summarising the key functions of a professional society, and then expressing principles that need to guide the design of a Constitution. This lays the foundation for the development of a proposal for governance structural arrangements, governance processes and other features of an appropriate Constitution.

1. Key Functions of a Professional Society

As expressed by the Australian Council of Professions, "A Profession is a disciplined group of individuals who adhere to ethical standards and who hold themselves out as, and are accepted by the public as possessing special knowledge and skills in a widely recognised body of learning derived from research, education and training [and/or deep experience] at a high level, and who are prepared to apply this knowledge and exercise these skills in the interest of others ... [with] high standards of behaviour in respect to the services provided to the public and in dealing with professional colleagues. Further, these codes are enforced by the Profession and are acknowledged and accepted by the community" (emphases added).

The following summarises key functions of a professional society:

2. Principles

Many ACS members are involved with for-profit corporations, variously as entrepreneurs, investors, directors, senior executives, managers and employed professionals; and many more are self-employed. Those corporations are the drivers of economic activity in the economy. The reasons those same people join the ACS are very different from those that drive their investment and employment decisions.

ACS members expect that their professional society will evidence values, declare and adapt a suitable mission statement, strategy and priorities, and conduct activities that are complementary to those performed by for-profit corporations, not competitive with them. This section proposes a set of Principles intended to encapsulate those values and priorities.

The following Meta-Principle underpins the Principles generally:

     0.  The Centrality of the Professional Membership

The Constitution must entrench direct involvement of the professional membership in the Society's values, strategy and priorities.

The following are proposed as the Principles that must guide the expression of the Constitution for the ACS:

  1. Values
    The Constitution must not only express objects, but must also reflect the Society's values, including those expressed in the Code of Ethics, and particularly the primacy of the public interest.
  2. Behaviour Consistent with Values
    The Constitution must provide assurance that business objectives, priorities, judgements and practices are based on, and are at all times consistent with, not only the Society's objects, but also its values.
  3. Dispersed Responsibilities, Powers and Funds
    The Constitution must allocate responsibilities, powers and funding according to the principle of subsidiarity, i.e. they are to be situated only as remotely from the members as is justified. For example, standards and public policy positions need to be consistent nationwide; whereas outreach and events with a local footprint, especially events with a large inter-personal networking component, need to at least involve and generally need to be run by the local Branch.
  4. Workable Delegations
    The Constitution must establish, but also enable adaptation of, appropriate delegations of responsibility, powers and accountability, to enable the Board and other internal organs, and the senior staff-member and the staff, to conduct the Society's ongoing business in an efficient and effective manner. This implies:
  5. Control of the Key Constitutional Documents by the Professional Membership
    The Constitution must entrench control of the documents that define the Society's structures, processes, norms and priorities in the hands of the professional membership, not of the Board and/or the senior staff-member. Contemporary, secure electronic communications and voting facilities must be applied, to ensure process efficiency.
  6. Control of Nomination Processes by the Professional Membership
    The Constitution must entrench control of the nomination process for the Board and other senior positions in the hands of the professional membership, not of the Board, other internal organs and/or the senior staff-member. To avoid the reality and/or appearance of dominance by the largest Branches, some Directors must be elected by the professional membership as a whole, and some by an electoral college whose members are drawn equally from each Branch. However, a review process may be valuable, to consider the extent to which the Board satisfies the needs for retention of corporate memory, for breadth and depth of expertise, and for diversity.
  7. Reinvigoration of the Branches
    Elected Branch Committees must have authority in relation to activities within their own geographical areas. They must also be assured of resources and of staff under their own control, accompanied by transparency and accountability to Branch members, and subject to financial management norms. However, Branches must not have any direct powers in relation to to matters of a national nature.

References

ACP (2018) 'What is a Profession?' Australian Council of Professions, June 2018, at http://www.professions.com.au/about-us/what-is-a-professional

The Constitution Working Group

Members of the Working Group that has developed this document are
(in alphabetical order by surname)

The membership of the Working Group is open-ended, but individuals are intended to be members who have materially contributed to the Society and to the development of the constitution. Each individual needs to nominate, and to agree to publication of their name, membership postnomics, Branch affiliation and email-address.

Additional Members are very welcome, particularly from
under-represented Branches, and with significant governance expertise