NSW Strata Committee Code of Conduct

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prodaroda

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14 May 2020
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How legal are strata committee codes of conduct?
I'm asking because the management has included the following clause:

Not publicly criticise other committee members or the processes of decision
making or the decisions of the committee;

That seems like it goes against freedom of speech rights.
They said that if you break any of the rules, they have the right to vote you out of the committee.

I am on my strata committee and I have the opinion that some of the members are doing a terrible job, if I criticise them (in a calm and respectful manner) at the AGM, do they have the right to remove me from the committee?
 

Rob Legat - SBPL

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Point number one - what freedom of speech rights do you think you have?
 
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prodaroda

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14 May 2020
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From humanrights.gov.au:
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.

Obviously I'm not a lawyer and don't know the nuiances of this "implied freedom", and how it applies to my situation, so I'm here asking for advice
 

Atticus

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6 February 2019
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Not publicly criticise other committee members or the processes of decision
making or the decisions of the committee;
if I criticise them (in a calm and respectful manner) at the AGM, do they have the right to remove me from the committee?
AT a closed AGM.... it wouldn't appear so.... Go putting your opinions out in public, then they reserve the right to take a vote on getting you kicked off
 

Rob Legat - SBPL

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Okay. There's no other way than to break this bluntly, so here it is. Neither you nor I have the right to free speech - at least not in the way most people imagine, and not in the way the folks in the US of A have (and yes, these are actually two different things).

We do have an 'implied freedom of political communication' which is accepted, but that is limited to the freedom to discuss and criticise the government. It has been held that this implied freedom "is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution." (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561 - for those interested).

The strata committee is a much different animal. It can largely govern itself, and set its own rules.

Consider the reason for the rule and the way it works. Although it says publicly, I would caution you to take public as meaning 'anything outside the committee itself'. Criticise within the the committee okay - not present a consolidated view to anything outside, probably will be considered to run afoul.

[In some ways it will work much like the political party decision making process - anyone who breaks ranks and discusses what happens in the internal workings of the party will often find themselves subject to discipline.]

Plus, consider the mechanism. You're not automatically out - you're subject to a vote. This it itself can be seen as a regulating 'check and balance'. While you may technically fall afoul of the prohibition, if everyone else agrees with it you'll be fine.

Even if it is unlawful or improper, it may all be for naught. There's precedent in the incorporated association space where someone has been dumped from membership/committee place, taken the matter to court, won, and still not been reinstated*. This has been on the basis that the rights of the person to due process and reinstatement do not outweigh the disharmony caused to the rest of the members by undoing the processes.

Another angle is to use the proper processes to get them removed. If they're doing a bad job, find a way to legitimately make sure either they're not re-elected or that the proper people are.

*Admittedly, based on research done in South Australia for a matter for a client, so it doesn't take into account all jurisdictions and circumstances.
 

prodaroda

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14 May 2020
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Thank you, Rob. I think I've got a handle on it now.
Basically if you have the political capital, you can do as you please.