Complete Constitution of OpenAustralia Foundation Limited

Contents

    Introduction

  1. Replaceable rules excluded
  2. Definitions and interpretation
  3. Objects
  4. Powers
  5. Application of income and property
  6. No distribution to members
  7. Limited liability
  8. Guarantee
  9. Membership
  10. Register of members
  11. Meetings of members

  12. Circulating resolutions
  13. Calling of general meeting
  14. Amount of notice of meeting
  15. Persons entitled to notice of general meeting
  16. How notice is given
  17. When notice is given
  18. Period of notice
  19. Contents of notice
  20. Notice of adjourned meeting
  21. Accidental omission to give notice
  22. Postponement of general meeting
  23. Technology
  24. Quorum
  25. Chair at general meetings
  26. Business at adjourned meetings
  27. Proxies and body corporate representatives

  28. Who can appoint a proxy
  29. Rights of proxies
  30. When proxy form must be sent to all members
  31. Appointing a proxy
  32. Form of proxy sent out by Company
  33. Receipt of proxy documents
  34. Validity of proxy vote
  35. Attorney of member
  36. Voting at meetings of members

  37. How vote may be exercised
  38. Voting disqualification
  39. Objections to right to vote
  40. How voting is carried out
  41. Matters on which a poll may be demanded
  42. When a poll is effectively demanded
  43. When and how polls must be taken
  44. Chair’s casting vote
  45. Annual general meeting

  46. Business of an annual general meeting
  47. Resolutions proposed by members
  48. Appointment of directors

  49. Number of directors
  50. Directors’ qualifications
  51. First directors
  52. Election of directors
  53. Nomination for election
  54. Election procedure – directors
  55. Time appointment or retirement takes effect
  56. Office bearers
  57. First office bearers and subsequent election at board meeting
  58. Eligibility and nomination
  59. Election procedure – office bearers
  60. Appointment of directors between AGMs

  61. Casual vacancies and additional directors
  62. Insufficient directors
  63. Alternate directors

  64. Appointment
  65. Rights and powers of alternate director
  66. Suspension or revocation of appointment
  67. Form of appointment, suspension or revocation
  68. Termination of appointment
  69. Power to act as alternate for more than 1 director
  70. Powers of directors

  71. Validation of acts of directors and secretaries
  72. General business management
  73. Borrowing powers
  74. Appointment of attorney
  75. Negotiable instruments
  76. Delegation to Committee of Directors
  77. Delegation generally
  78. Establishment of advisory boards
  79. Executive officer

  80. Power to appoint
  81. Not a member of the board
  82. Powers
  83. Withdrawal of appointment or powers
  84. Temporary appointments
  85. Removal and resignation of directors

  86. Removal of directors
  87. Resignation of director
  88. Vacation of office of director
  89. Directors’ interests

  90. Prohibition on being present or voting
  91. Director to disclose interests
  92. Effect of interest in contract
  93. Standing notice of interest
  94. Other interests
  95. Extension of meaning of “Company”
  96. Other directorships and shareholdings
  97. Directors’ meetings

  98. Circulating resolutions
  99. Meetings of directors
  100. Calling directors’ meetings
  101. Notice of meeting
  102. Waiver of notice
  103. Technology meeting of directors
  104. Chairing directors’ meetings
  105. Quorum
  106. Passing of directors’ resolutions
  107. Remuneration of directors

  108. No directors’ remuneration
  109. Directors’ expenses
  110. Financial benefit
  111. Secretary

  112. Appointment of secretary
  113. Terms of office of secretary
  114. Indemnity and insurance

  115. Indemnity
  116. Insurance
  117. Director voting on contract of indemnity or insurance
  118. Liability
  119. Meaning of “officer”
  120. Winding up

  121. Winding up
  122. Surplus gifts

  123. Surplus gifts
  124. Minutes

  125. Minutes to be kept
  126. Inspection of records

  127. Rights of inspection
  128. Confidential information
  129. Accounts, audit and records

  130. Accounts
  131. Audit
  132. Execution of documents

  133. Common seal
  134. Use of common seal
  135. Execution of documents without common seal
  136. Execution of document as a deed
  137. Execution – general
  138. Notices

  139. Notices other than notices of meeting
  140. Inadvertent omissions

  141. Formalities omitted
  142. Alterations

  143. Alterations
  144. Electronic communication

  145. Production of electronic communication
  146. Retention of electronic communication
  147. Signing

  148. Signing

Corporations Act 2001

Company limited by guarantee

Introduction

Replaceable rules excluded

  1. The replaceable rules contained in the Act do not apply to the Company.

Definitions and interpretation

  1. Definitions
    1. Act means the Corporations Act 2001 and includes any amendment or re-enactment of it or any legislation passed in substitution for it;
    2. auditor means any person appointed for the time being to perform the duties of an auditor of the Company;
    3. business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place where the Company has its registered office;
    4. company means OpenAustralia Foundation Limited;
    5. corporate member means a member which is a body corporate;
    6. directors means the directors for the time being of the Company or the directors assembled as a board;
    7. document includes an electronic or online document
    8. foundation members means the persons who consent to be members on the registration of the Company;
    9. register means the register of members to be kept pursuant to the Act;
    10. registered office of the Company includes the electronic address of the Company;
    11. representative means a person authorised to act as a representative of a body corporate pursuant to section 250D of the Act;
    12. responsible person means an individual who:
      1. has a degree of responsibility to the community as a whole;
      2. is known to a broad section of the community because he or she performs a public function;
      3. belongs to a professional body which has a professional code of ethics and rules of conduct; or
      4. has received formal recognition from the Government for their services to the community; and
      5. may be, but is not limited to being, a school principal, a member of the judiciary, a member of the clergy, a solicitor, doctor and other professional person, mayor, councillor, town clerk or member of parliament; and
    13. secretary means any person appointed to perform the duties of secretary of the Company and any person appointed to act temporarily as secretary;
    14. signature means a method, including an electronic method, used to identify the person and to indicate the person’s approval of the information communicated.
  2. In this constitution:

  3. Interpretation
    1. Reference to:
      1. one gender includes the others;
      2. the singular includes the plural and the plural includes the singular; and
      3. a person includes a body corporate.
    2. Except so far as the contrary intention appears in this constitution:
      1. an expression has in this constitution the same meaning as in the Act; and
      2. if an expression is given different meanings for the purposes of different provisions of the Act, the expression has, in a provision of this constitution that deals with a matter dealt with by a particular provision of the Act, the same meaning as in that provision of the Act.
    3. “Including” and similar expressions are not words of limitation.
    4. Headings and any table of contents or index are for convenience only and do not form part of this constitution or affect its interpretation.
    5. “In writing” “writing” or “written” includes any other mode of representing or reproducing words, figures, drawings or symbols in a visible form including by means of electronic communication, and if the information was given by electronic communication at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.

Objects

  1. The objects for which the Company is established are:
    1. to support a nationwide open access public digital reference library for the purpose of making information relating to public bodies accessible and useful for all Australians;
    2. to conduct research into the use and effects of information and communication technologies relating to public engagement and developing tools to enable the sharing of information for the purpose of improving such engagement;
    3. to disseminate the results and methods of this research for the benefit and education of the public;
    4. to provide tools and services to both public and private bodies or institutions, and the general public, to enable them to reuse such data and research freely and for the public good;
    5. to provide content and software under an open licence wherever practicable;
    6. to create a network for related local, online and library communities;
  2. The Company must pursue charitable purposes only and must apply its income in promoting those purposes.
  3. The Company must manage payments and gifts to the Company and ensure that they are used to further the stated objects of the Company.

Powers

[compare section 124]

  1. The Company has all the powers of an individual and a body corporate but does not have the power to issue shares.
  2. Despite rule 4.1 the powers of the Company are ancillary to and exercisable only to pursue the objects of the Company set out in rule 2.2(5).

Application of income and property

[compare sections 125 and 150]

  1. The income and property of the Company, from wherever it is derived, must be applied solely towards the promotion of the objects of the Company set out in rule ‎2.2(5).

No distribution to members

[compare section 150]

  1. No portion of the income or property of the Company may be paid directly or indirectly, by way of dividend, bonus or otherwise to the members of the Company.
  2. Rule ‎6.1 does not prevent:
    1. the payment in good faith of remuneration to any officer, servant or member of the Company in return for any services actually rendered to the Company or for goods supplied in the ordinary and usual way of business;
    2. the payment of interest at a rate not exceeding the current bank overdraft rates of interest for moneys lent to the Company;
    3. the payment of reasonable and proper rent by the Company to a member of the Company for premises leased by the member to the Company; or
    4. the reimbursement of expenses incurred by any member on behalf of the Company.

Limited liability

  1. The liability of the members is limited.

Guarantee

  1. Every member of the Company undertakes to contribute an amount not exceeding $100 to the property of the Company in the event of its being wound up while the member is a member or within 1 year after the member ceases to be a member, if required for payment:
    1. of the debts and liabilities of the Company (contracted before the member ceases to be a member);
    2. of the costs, charges and expenses of winding up; and
    3. for the adjustment of the rights of the contributories among themselves.

Membership

9.1. Admission to membership

  1. The number of members of the Company is unlimited.
  2. The members of the Company shall be:
    1. the foundation members; and
    2. any other person admitted to membership by the board of directors in accordance with this Constitution,
    3. but does not include a body corporate, a trust or partnership.

  3. Every applicant for membership of the Company (other than the persons referred to in clause ‎9.1 shall be proposed by a member of the Company who personally knows the applicant. The application for membership shall be in a form approved by the board of directors from time to time and shall be signed by the applicant and the proposer and shall be addressed to the secretary at the registered office of the Company.
  4. At the next meeting of the board of directors after the receipt of any application for membership, such application shall be considered and the board of directors will in its absolute discretion determine whether to admit or reject the application or decide to call upon the applicant to supply any evidence of eligibility that it considers reasonably necessary. If the board of directors:
    1. requires further evidence under this clause, determination of the application will be deferred until this evidence has been supplied;
    2. rejects the application for membership, it will not be required to give any reason for the rejection.
  5. As soon as practicable following acceptance of an application, the Secretary will send to the applicant written notice of the acceptance and a request for payment of the entrance fee and first annual subscription. If an applicant is accepted for membership on or as from a date other than 1 July in any year, the first subscription payable by the applicant shall be pro-rata according to the period elapsed since the previous first day of July.
  6. Upon payment of the entrance fee and first annual subscription, the applicant shall become a member of the Company. However, if such payment has not been made within two (2) months after the date of the notice of acceptance of the application, the board of directors may in its discretion cancel its acceptance of the application for membership of the Company.
  7. The rights and privileges of every member are personal to each member and are not transferable by a member’s own act or by operation of law.

9.2. Entrance fee and annual subscriptions

  1. The entrance fee and annual subscription payable by members is the amount as the Company at the general meeting from time to time prescribes. However, until the Company otherwise resolves, the entrance fee is $10, and the annual subscription is $10.
  2. All annual subscriptions become due and payable in advance on 1 July in every year.

9.3. Cessation of membership

  1. If a member does not pay an annual subscription within two (2) months of its due date then:
    1. the board of directors will give the member written notice of that fact; and
    2. if the full amount due is not paid by the member within thirty (30) days of the date of the notice, the board of directors may declare the member’s membership forfeited.

    However the board of directors may reinstate the member’s membership on payment of all arrears if the board of directors thinks fit to do so.

  2. A member’s membership in the Company will cease if the member gives the Secretary written notice of resignation, and the membership will cease from the date of receipt of that notice by the Secretary.
  3. If any member wilfully refuses or neglects to comply with the provisions of the Constitution or is guilty of any conduct which in the opinion of the members in general meeting is unbecoming of a member or prejudicial to the interests of the Company, the members in general meeting have power by resolution to censure, fine, suspend or expel the member from the Company. However, at least one week before the meeting of the members in general meeting at which such a resolution is passed, the member must be given notice of such meeting, of the allegations made against him and of the intended resolution. The member shall, at such meeting and before the passing of such resolution, be given the opportunity of giving, orally or in writing, any explanation or defence the member may think fit.
  4. Despite the above, any such member may, by written notice lodged with the Secretary at least twenty-four hours before the appointed time for the general meeting at which the resolution is to be considered by the members in general meeting, elect to have the question dealt with by the Company in general meeting. In that event a general meeting of the Company is called for this purpose and if at the meeting such a resolution is passed by a majority of two-thirds of those present and voting (such a vote to be taken by ballot), the member concerned shall be punished accordingly and in the case of a resolution for his expulsion, the member shall be expelled.
  5. Any member ceasing to be a member:
    1. will not be entitled to any refund (or part refund) of any annual subscription paid;
    2. will continue to be liable for any annual subscription and all arrears due and unpaid at the date of his or her resignation or ceasing to be a member and for all other moneys due by him to the Company and in addition for any sum not exceeding $100.00 for which he or she is liable as a member of the Company under clause ‎105.1.

9.4. Voting rights

Each member and foundation member will have the right to one vote at a meeting of members of the Company

9.5. Non-voting members

  1. The board of directors may at any time establish additional categories of non-voting membership, for example ‘associate members’ or ‘institutional members’.
  2. The voting rights (if any), entrance fee and annual subscription for the new categories of membership will be determined by the board of directors at the time of creating that category of membership.

Register of members

[compare sections 168 and 169]

  1. The Company must keep a Register in accordance with the Act.
  2. The following must be entered in the Register in respect of each member:
    1. the full name of the member;
    2. the residential address, facsimile number and electronic mail address, if any, of the member;
    3. the category of membership;
    4. the date of admission to and cessation of membership;
    5. the date of last payment of the member’s annual subscription;
    6. in the case of a corporate member, the full name, address, facsimile number and electronic mail address, if any, of its nominated representative; and
    7. such other information as the directors require.
  3. Each member and nominated representative must notify the secretary in writing of any change in that person’s name, address, facsimile number or electronic mail address within 1 month after the change.

Meetings of members

Circulating resolutions

[compare section 249A]

  1. This rule ‎11 applies to resolutions which the Act, or this constitution, requires or permits to be passed at a general meeting, except a resolution under section 329 of the Act to remove an auditor.
  2. The Company may pass a resolution without a general meeting being held if all the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document.
  3. Separate copies of a document may be used for signing by members if the wording of the resolution and statement is identical in each copy.
  4. The resolution is passed when the last member signs.
  5. If the Company receives by facsimile transmission a copy of a document referred to in this rule ‎11 it is entitled to assume that the copy is a true copy.

Calling of general meeting

[compare sections 250N, replaceable rule 249C and section 249D]

  1. A majority of directors may call a general meeting whenever they see fit.
  2. Except as permitted by law, a general meeting, to be called the annual general meeting, must be held at least once in every calendar year.
  3. Except as provided in the Act, no member or members may call a general meeting.

Amount of notice of meeting

[compare section 249H]

  1. Subject to the provisions of the Act as to short notice, at least 21 days’ notice of a general meeting must be given in writing to those persons who are entitled to receive notices from the Company.

Persons entitled to notice of general meeting

[compare sections 249J(1) and 249K, and replaceable rule 249J(2)]

  1. Written notice of a meeting of the Company’s members must be given individually to:
    1. each member entitled to vote at the meeting;
    2. each director; and
    3. the Company’s auditor.
  2. The Company is only required to give notice of general meetings to those persons entitled to receive notice under this constitution and the Act.

How notice is given

[compare sections 249J(3) and 240J(3A)]

  1. The Company may give the notice of meeting to a member:
    1. personally;
    2. by sending it by post to the address for the member in the Register or the alternative address (if any) nominated by the member;
    3. by sending it to the facsimile number or electronic address nominated by the member; or
    4. by notifying the member in accordance with rule ‎15.2.
  2. If the member nominates:
    1. an electronic means (nominated notification means) by which the member may be notified that notices of meeting are available; and
    2. an electronic means (nominated access means) the member may use to access notices of meeting;

    the Company may give the member notice of the meeting by notifying the member (using the nominated notification means):

    1. that the notice of meeting is available; and
    2. how the member may use the nominated access means to access the notice of meeting.

When notice is given

[compare replaceable rules 249J(4) and 249J(5)]

  1. A notice of meeting sent by post is taken to be given 3 days after it is posted.
  2. Except as provided by rule ‎16.3, a notice of meeting given to a member under rule ‎15.1(3) is taken to be given on the business day after it is sent.
  3. A notice of meeting given to a member under rule ‎15.1(3) is not effective if:
    1. in the case of service by facsimile, the Company’s facsimile machine issues a transmission report that the transmission was unsuccessful;
    2. in the case of service by electronic mail, the Company’s computer reports that delivery has failed; or
    3. in either case the addressee notifies the Company immediately that the notice was not fully received in a legible form.
  4. A notice of meeting given to a member under rule ‎15.1(4) is taken to be given on the business day after the day on which the member is notified that the notice of meeting is available.
  5. A certificate signed by a manager, secretary or other officer of the Company that the notice was posted or given in accordance with this rule ‎16 is conclusive evidence of the matter.

Period of notice

  1. Subject to the Act and this constitution where a specified number of days’ notice or notice extending over any period is required to be given, the day of service is excluded, and the day upon which the notice expires is included.

Contents of notice

[compare replaceable rule 249L]

  1. A notice of a general meeting must:
    1. set out the place, date and time for the meeting (and, if the meeting is to be held in 2 or more places, the technology that will be used);
    2. state the general nature of the meeting’s business;
    3. if a special resolution is to be proposed at the meeting, set out an intention to propose the special resolution and state the resolution;
    4. be worded and presented in a clear, concise and effective manner; and
    5. contain a statement setting out the following information:
      1. that the member has a right to appoint a proxy; and
      2. that the proxy need not be a member of the Company.

Notice of adjourned meeting

[replaceable rule 249M]

  1. When a meeting is adjourned, new notice of the resumed meeting must be given if the meeting is adjourned for 1 month or more.

Accidental omission to give notice

[compare section 1322(3)]

  1. The accidental omission to give notice of any general meeting to or the non-receipt of the notice by any person entitled to receive notice of a general meeting under this constitution does not invalidate the proceedings at or any resolution passed at the meeting.

Postponement of general meeting

  1. The directors may postpone the holding of any general meeting whenever they see fit (other than a meeting requisitioned by members as provided by the Act) for not more than 42 days after the date for which it was originally called.
  2. Whenever any meeting is postponed (as distinct from being adjourned under rule ‎23.3 or rule ‎24.3) the same period of notice of the meeting must be given to persons entitled to receive notice of a meeting as if a new meeting were being called for the date to which the original meeting is postponed.

Technology

[section 249S]

  1. The Company may hold a meeting of its members at 2 or more venues using any technology that gives the members as a whole a reasonable opportunity to participate.

Quorum

[compare replaceable rule 249T]

  1. The quorum for a meeting of the Company’s members is 2 members and the quorum must be present at all times during the meeting.
  2. In determining whether a quorum is present, individuals attending as proxies, attorneys or body corporate representatives are counted. However, if a member has appointed more than 1 proxy, attorney or representative, only 1 of them is counted. If an individual is attending both as a member and as a proxy, attorney or body corporate representative, the individual is counted only once.
  3. If a quorum is not present within 30 minutes after the time for the meeting set out in the notice of meeting:
    1. where the meeting was called by the members or upon the requisition of members, the meeting is dissolved; or
    2. in any other case, the meeting is adjourned to the date, time and place the directors specify. If the directors do not specify 1 or more of those things, the meeting is adjourned to:
      1. if the date is not specified – the same day in the next week;
      2. if the time is not specified – the same time; and
      3. if the place is not specified – the same place.
  4. If no quorum is present at the resumed meeting within 30 minutes after the time for the meeting, the meeting is dissolved.

Chair at general meetings

[compare replaceable rule 249U]

  1. The president of the Company, if present, presides as chair at every general meeting.
  2. Where a general meeting is held and:
    1. there is no president of the Company; or
    2. the president is not present within 30 minutes after the time appointed for the holding of the meeting or is unwilling to act;
    3. the vice-president of the Company if present presides as chair of the meeting or, if the vice-president is not present or is unwilling to act, the directors present may appoint 1 of their number to be chair of the meeting and in default of their doing so the members present may appoint any 1 of their number to be chair of the meeting.

  3. The chair may, at any time during the meeting, adjourn the meeting or any business, motion, question, resolution, debate or discussion being considered or remaining to be considered by the meeting either to a later time at the same meeting or to an adjourned meeting at any time and any place. In exercising this discretion, the chair may, but need not, seek the approval of the members present. Unless required by the chair, no vote may be taken or demanded by the members present in respect of any adjournment.
  4. The chair of the meeting is responsible for the general conduct of the meeting and for the procedures to be adopted at that meeting. The rulings of the chair of a meeting on all matters relating to the procedure and conduct of the meeting are final and no motion of dissent from those rulings may be accepted.
  5. The chair of the meeting may in his or her absolute discretion refuse admission to, or require to leave and remain out of the meeting, any person who is not a member, director or auditor of the Company.
    1. A director who is not a member is entitled to be present and to speak to any general meeting.
    2. A secretary who is not a member is entitled to be present and to speak at any general meeting.
    3. The auditor of the Company from time to time and any assistant of the auditor who is not a member is entitled to be present and to speak at any general meeting on any part of the meeting’s business that concerns the auditor in the capacity as auditor of the Company.
    4. Any professional adviser of the Company (including, without limitation, a solicitor or financial adviser), at the request of any director, is entitled to be present and, at the request of the chair, to speak at any general meeting. However, subject to the Act and this constitution, the Company is not obliged to send a notice of meeting to any professional adviser.

Business at adjourned meetings

[replaceable rule 249W(2)]

  1. Only unfinished business is to be transacted at a meeting resumed after an adjournment.

Proxies and body corporate representatives

Who can appoint a proxy

[compare mandatory rule 249X]

  1. A member who is entitled to attend and cast a vote at a meeting of the Company’s members may appoint an individual or a body corporate as the member’s proxy to attend and vote for the member at the meeting. The proxy need not be a member.

Rights of proxies

[compare section 249Y]

  1. A proxy appointed to attend and vote for a member has the same rights as the member:
    1. to speak at the meeting;
    2. to vote (but only to the extent allowed by the appointment); and
    3. to join in a demand for a poll.
  2. If a proxy is only for a single meeting it may be used at any postponement or adjournment of that meeting, unless the proxy states otherwise.
  3. A proxy’s authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting.
  4. A proxy may be revoked at any time by notice in writing to the Company.

When proxy form must be sent to all members

[section 249Z]

  1. If the Company sends a member a proxy appointment form for a meeting or a list of persons willing to act as proxies at a meeting:
    1. if the member requested the form or list – the Company must send the form or list to all members who ask for it and who are entitled to appoint a proxy to attend and vote at the meeting; or
    2. otherwise – the Company must send the form or list to all its members entitled to appoint a proxy to attend and vote at the meeting.

Appointing a proxy

[compare section 250A and Corporations Regulations 2001 reg 2G.2.01]

  1. An appointment of a proxy is valid if it is signed or otherwise electronically authenticated (as referred to in regulation 2G.2.01 of the Corporations Regulations 2001, and in rules ‎29.2 and ‎29.3) by the member making the appointment and contains the following information:
    1. the member’s name and address;
    2. the Company’s name;
    3. the proxy’s name or the name of the office held by the proxy; and
    4. the meetings at which the appointment may be used.

    An appointment may be a standing one.

  2. An electronically authenticated appointment of a proxy must in addition to rule ‎29.1:
    1. include a method of identifying the member; and
    2. include an indication of the member’s approval of the information communicated.
  3. If the electronically authenticated appointment of a proxy is done through either email or internet-based voting:
    1. the member must be identified by personal details such as the member’s name, personal address and date of birth; and
    2. the member’s approval must be communicated by a form of security protection (for example, the entering of a confidential identification number such as a shareholder registration number or holder identification number).
  4. An undated appointment is taken to have been dated on the day it is given to the Company.
  5. An appointment may specify the way the proxy is to vote on a particular resolution. If it does:
    1. the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way;
    2. if the proxy has 2 or more appointments that specify different ways to vote on the resolution – the proxy must not vote on a show of hands;
    3. if the proxy is the chair – the proxy must vote on a poll, and must vote that way; and
    4. if the proxy is not the chair – the proxy need not vote on a poll, but if the proxy does so, the proxy must vote that way.

    If a proxy is also a member, this rule ‎29.5 does not affect the way that the person can cast any votes the person holds as a member.

  6. An appointment does not have to be witnessed.
  7. A later appointment revokes an earlier one if both appointments could not be validly exercised at the meeting.

Form of proxy sent out by Company

  1. A form of proxy sent out by the Company may be in a form determined by the directors but must:
    1. enable the member to specify the manner in which the proxy must vote in respect of a particular resolution; and
    2. leave a blank for the member to fill in the name of the person primarily appointed as proxy.
  2. The form may provide that if the member leaves it blank as to the person primarily appointed as proxy or if the person or persons named as proxy fails or fail to attend, the chair of the meeting is appointed proxy.
  3. Despite rule ‎30.1 an instrument appointing a proxy may be in the following form or in a form that is as similar to the following form as the circumstances allow:
    OpenAustralia Foundation Limited

    ACN …………………………

    I/We, ………………………. of ……………………, being a member/members of the abovenamed company, appoint ………………….. of ………………. or, in his or her absence, ……………….. of …………………… as my/our proxy to vote for me/us on my/our behalf at the *annual general/*general meeting of the company to be held on ……………. and at any adjournment of that meeting.

    † This form is to be used *in favour of/*against the resolution.

    Signed on .

    * Strike out whichever is not desired.

    † To be inserted if desired.

Receipt of proxy documents

[compare section 250B]

  1. For an appointment of a proxy for a meeting of the Company’s members to be effective, the following documents must be received by the Company at least 48 hours before the meeting:
    1. (1) the proxy’s appointment; and
    2. (2) if the appointment is signed or otherwise authenticated by the appointor’s attorney – the authority under which the appointment was signed or authenticated or a certified copy of the authority.
  2. If a meeting of the Company’s members has been adjourned, an appointment and any authority received by the Company at least 48 hours before the resumption of the meeting are effective for the resumed part of the meeting.
  3. The Company receives an appointment or authority:
    1. (1) when it is received at any of the following:
      1. (a) the Company’s registered office;
      2. (b) a facsimile number at the Company’s registered office; or
      3. (c) a place, facsimile number or electronic mail address specified for the purpose in the notice of meeting; or
    2. (2) if the notice of meeting specifies other electronic means by which a member may give the document – when the document given by those means is received by the Company and complies with rules ‎29.2 and ‎29.3.
  4. An appointment of a proxy is ineffective if:
    1. the Company receives either or both the appointment or authority at a fax number or electronic address; and
    2. a requirement (if any) in the notice of meeting that:
      1. the transmission be verified in a way specified in the notice; or
      2. the proxy produce the appointment and authority (if any) at the meeting;

      is not complied with.

Validity of proxy vote

[section 250C(1) and compare replaceable rule 250C(2)]

  1. A proxy who is not entitled to vote on a resolution as a member may vote as a proxy for another member who can vote if the appointment specifies the way the proxy is to vote on the resolution and the proxy votes that way.
  2. Unless the Company receives written notice of one of the following matters before the start or resumption of the meeting at which the proxy votes, a vote cast by the proxy will be valid even if:
    1. the appointing member dies;
    2. the member is mentally incapacitated;
    3. the member revokes the proxy’s appointment; or
    4. the member revokes the authority under which the proxy was appointed by a third party;

    before the proxy votes.

  3. A proxy is not revoked by the member attending and taking part in the meeting unless the member actually votes at the meeting on a resolution for which the proxy is proposed to be used.

Attorney of member

  1. An attorney for a member may do whatever the member could do personally as a member, but if the attorney is to vote at a meeting of members or a class of members the instrument conferring the power of attorney or a certified copy of it must be produced to the Company at least 48 hours before the meeting, in the same way as the appointment of a proxy.

Voting at meetings of members

How vote may be exercised

  1. Subject to rules ‎35 and ‎36 at any general meeting of members, each member present has 1 vote on a show of hands and on a poll.
  2. The vote may be exercised in person or by proxy, or attorney.

Voting disqualification

  1. A member is not entitled to vote at a general meeting if:
    1. the annual subscription of the member; or
    2. in the case of a person who is a nominated representative, the annual subscription of the corporate member for which he or she is the nominated representative;

    is more than 1 month in arrears at the date of the meeting or the postponed or adjourned meeting.

Objections to right to vote

[compare replaceable rule 250G]

  1. A challenge to a right to vote at a meeting of members:
    1. may only be made at the meeting; and
    2. must be determined by the chair, whose decision is final.
  2. A vote not disallowed following the challenge is valid for all purposes.

How voting is carried out

[compare replaceable rule 250J and section 251A]

  1. A resolution put to the vote at a meeting of the Company’s members must be decided on a show of hands unless a poll is demanded.
  2. On a show of hands, a declaration by the chair is conclusive evidence of the result. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.
  3. Unless otherwise required by this constitution or the Act, all resolutions of the Company are ordinary resolutions which are resolutions passed by more than 50% of the votes cast by members entitled to vote on the resolutions.

Matters on which a poll may be demanded

[compare section 250K]

  1. A poll may be demanded on any resolution.
  2. A demand for a poll may be withdrawn.

When a poll is effectively demanded

[compare section 250L]

  1. At a meeting of the Company’s members, a poll may be demanded by:
    1. at least 3 members entitled to vote on the resolution;
    2. a member or members with at least 5% of the votes that may be cast on the resolution on a poll; or
    3. the chair.
  2. The poll may be demanded:
    1. before a vote is taken;
    2. before the voting results on a show of hands are declared; or
    3. immediately after the voting results on a show of hands are declared.

When and how polls must be taken

[compare replaceable rule 250M]

  1. A poll demanded on a matter other than the election of a chair or the question of an adjournment must be taken when and in the manner the chair directs.
  2. A poll on the election of a chair or on the question of an adjournment must be taken immediately.
  3. The demand for a poll does not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded.
  4. The result of the poll is the resolution of the meeting at which the poll was demanded.

Chair’s casting vote

[compare replaceable rule 250E(3)]

  1. In the case of an equality of votes, whether on a show of hands or on a poll, the chair of the meeting has a casting vote in addition to any vote he or she may have in his or her capacity as a member or proxy.
  2. The chair has a discretion both as to use of the casting vote and as to the way in which it is used.

Annual general meeting

[compare section 250N]

Business of an annual general meeting

[compare sections 250R, 250S and 250T]

  1. The business of an annual general meeting may include any of the following, even if not referred to in the notice of meeting:
    1. the consideration of the annual financial report, directors’ report and auditor’s report;
    2. the election of directors;
    3. the appointment of the auditor; and
    4. the fixing of the auditor’s remuneration.

    All other business transacted at an annual general meeting and all business transacted at any other general meeting is special business.

  2. The business of the annual general meeting also includes any other business which under this constitution or the Act ought to be transacted at an annual general meeting.
  3. The chair of the annual general meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask questions about or make comments on the management of the Company.
  4. If the Company’s auditor or the auditor’s representative is at the meeting, the chair of an annual general meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask the auditor or that representative questions relevant to the conduct of the audit and the preparation and content of the auditor’s report.

Resolutions proposed by members

[compare sections 249N and 249O]

  1. A member may not at any meeting move any resolution relating to special business unless:
    1. members with at least 5% of the votes that may be cast on the resolution have given the Company notice of the resolution or the requirements of section 249N of the Act have otherwise been satisfied, and 2 months notice has elapsed since the notice was given; or
    2. the resolution has previously been approved by the directors.

Appointment of directors

Number of directors

[compare section 201A]

  1. The number of the directors must be not less than 3 not more than 9.
  2. The Company in general meeting may by resolution increase or reduce the number of directors referred to in rule ‎44.1 but the number may not be reduced below 3.

Directors’ qualifications

  1. No person may be a director unless that person is a member of the Company or is the nominated representative of a member.
  2. The majority of directors at all time must be Responsible Persons.

First directors

  1. The first directors are those named in the application for registration of the Company.
  2. The first directors hold office until the termination of the first annual general meeting of the Company but, subject to this constitution, are eligible for election at that meeting. If they resign before the first annual general meeting, they may be replaced at a general meeting before the first annual general meeting, and their replacements hold office until the termination of the first annual general meeting.

Election of directors

[compare section 201E and replaceable rule 201G]

  1. The directors are elected at each annual general meeting of the Company.
  2. An elected director holds office until the termination of the next annual general meeting held after his or her election.

Nomination for election

  1. Each candidate for election as a director must:
    1. be proposed by a member, or the nominated representative; and
    2. be seconded by a member, or the nominated representative of a member;

    both of which members must be current financial members of the Company at the time of nomination.

  2. No member or nominated representative of a member may propose more than 1 person as a candidate but may second more than 1 nomination.
  3. A nomination of a candidate for election must:
    1. be in writing;
    2. be signed by the candidate; and
    3. be signed by the proposer and seconder.
  4. A nomination of a candidate for election must be received at the registered office of the Company not later than 5pm on the day which is 30 days prior to the annual general meeting at which the candidate seeks election.
  5. A list of the candidates’ names in alphabetical order together with the proposers’ and seconders’ names must be sent to members with the notice of the annual general meeting.

Election procedure – directors

  1. If the number of candidates for election as directors is equal to or less than the number of vacancies on the board, the chair of the annual general meeting must declare those candidates to be duly elected as directors.
  2. If the number of candidates for election as directors is greater than the number of vacancies on the board, a ballot must be held for the election of the candidates.
  3. If a ballot is required, balloting lists must be prepared listing the names of the candidates only in alphabetical order.
  4. At the annual general meeting each person entitled to vote and voting on the ballot may vote for a number of candidates equal to the number of vacancies.
  5. The candidates receiving the greatest number of votes cast in their favour must be declared by the chair of the meeting to be elected as directors.
  6. If an equality of votes would otherwise prevent the successful candidate for a vacancy from being determined, the chair, prior to the declaration of the result of the ballot, in addition to his or her deliberative vote (if any) is entitled to a casting vote, except that if the chair:
    1. does not exercise a casting vote; or
    2. is one of the candidates who received the same number of votes;

    then the names of the candidates who received the same number of votes must be put to a further ballot immediately.

  7. There is not a vacancy for the purpose of this rule ‎49 (or rules ‎55 or ‎56) because the number of directors is less than the maximum allowed under rule ‎44.1. There is a vacancy only if the number of directors is less than the number elected at the previous annual general meeting (adjusted for any increase under clause ‎55.1).

Time appointment or retirement takes effect

  1. Directors who are appointed at a meeting of members take office immediately after the end of the meeting.
  2. Directors who retire at a meeting of members continue to hold office until the end of the meeting.

Office bearers

  1. The office bearers of the Company are:
    1. the president;
    2. the vice-president;
    3. the treasurer; and
    4. the secretary.

First office bearers and subsequent election at board meeting

  1. The first office bearers of the Company are elected by the first directors appointed under rule ‎46. They hold office until the end of the first meeting of the directors held after the first annual general meeting of the Company.
  2. Subsequent office bearers are elected by the directors at the first meeting of the directors held after the immediately preceding annual general meeting and hold office until the end of the first meeting of the directors held after the next annual general meeting.
  3. The directors present must appoint 1 of their number to act as chair of the meeting for the purpose of the election.

Eligibility and nomination

  1. Except for the secretary, only directors may be office bearers. Any director is eligible for election to any office bearer position.
  2. Each director standing for election as an office bearer must be proposed by another director.
  3. If a director stands for election for more than 1 position as an office bearer separate nominations must be received in respect of each position.
  4. A nomination may be:
    1. in writing, received by the secretary not less than 24 hours prior to the board meeting at which the election is to take place and signed by the candidate and the proposer; or
    2. made orally at the meeting, provided that the candidate is present and consents to the nomination.

Election procedure – office bearers

  1. The election of the office bearers is held in the order in which the positions are listed in rule ‎52.1.
  2. If there is only 1 candidate for election to any office bearer position that person is declared elected to that position.
  3. If there is more than 1 candidate for election to any office bearer position a ballot must be held among the candidates. The candidate receiving the greatest number of votes cast in his or her favour is declared elected to that position.
  4. In the case of an equality of votes in respect of any position a further ballot must be held immediately but if there is still an equality of votes the successful candidate must be determined by lot.
  5. If a director is elected to a position as office bearer then his or her nomination, if any, for any other position must be treated as withdrawn before the election is held in respect of the other position or positions.
  6. Subject to this rule ‎54 a ballot is conducted in the manner the directors determine.

Appointment of directors between AGMs

Casual vacancies and additional directors

[compare replaceable rules 201G and 201H]

  1. The Company in general meeting may by resolution and the directors may at any time appoint a person qualified to be a director, either to fill a casual vacancy or as an addition to the existing directors, but so that the total number of directors does not at any time exceed the number fixed in accordance with this constitution.
  2. Any director appointed under rule ‎55.1 holds office until the termination of the next annual general meeting of the Company and is then eligible for re-election at that annual general meeting.

Insufficient directors

[compare replaceable rule 201H]

  1. In the event of a vacancy or vacancies in the office of a director, the remaining directors may act, but if the number of remaining directors is not sufficient to constitute a quorum at a meeting of directors, they may act only for the purpose of increasing the number of directors to a number sufficient to constitute a quorum or convening a general meeting of the Company.

Alternate directors

[compare replaceable rule 201K]

Appointment

  1. A director may appoint any person who is qualified to be a director and who is approved by a majority of the other directors to act as an alternate director in place of the appointing director for a meeting or for a specified period.
  2. An alternate director is not taken into account for the purpose of rule ‎44.

Rights and powers of alternate director

  1. An alternate director is entitled to notice of meetings of the directors and, if the appointor is not present at a meeting, is entitled to attend and vote in his or her stead.
  2. Subject to the requirements of the Act, an alternate director is entitled to a separate vote for each director that the alternate director represents in addition to any vote the alternate director may have as a director in his or her own right.
  3. An alternate director, when acting as a director, is responsible to the Company for his of her own acts and defaults and is not to be taken as the agent of the director by whom he or she was appointed.

Suspension or revocation of appointment

  1. A director may revoke or suspend the appointment of an alternate director appointed by him or her.
  2. The directors may suspend or remove an alternate director by resolution after giving the appointing director reasonable notice of their intention to do so.

Form of appointment, suspension or revocation

  1. An appointment, suspension or revocation under rules ‎57 or ‎59 takes effect only when the Company has received notice in writing of the appointment, suspension or revocation. The notice may be given by facsimile or electronic communication.

Termination of appointment

  1. The appointment of an alternate director automatically terminates:
    1. if the appointor ceases to hold office as director;
    2. on the happening in respect of the alternate director any event which causes a director to vacate the office of director; or
    3. if the alternate director resigns from the appointment by written notice left at the registered office of the Company.

Power to act as alternate for more than 1 director

  1. A director or any other person may act as alternate director to represent more than 1 director.
  2. Subject to the Act, in determining whether a quorum is present at a meeting of directors, an alternate director who attends the meeting is to be counted as a director for each director on whose behalf the alternate director is attending the meeting.

Powers of directors

Validation of acts of directors and secretaries

[compare sections 201M and 204E]

  1. An act done by a director or secretary of the Company is effective even if his or her appointment, or the continuance of his or her appointment is invalid because the Company, the director or secretary did not comply with this constitution or any provision of the Act.
  2. Rule ‎63.1 does not deal with the question whether an effective act by a director or secretary:
    1. binds the Company in its dealings with other people; or
    2. makes the Company liable to another person.
  3. Where a person whose office as director of the Company is vacated under a provision of the Act purports to do an act as a director of the Company, that act is as valid, in relation to a person dealing with the Company in good faith and for value and without actual knowledge of the matter because of which the office was vacated, as if the office had not been vacated.

General business management

[compare replaceable rule 198A]

  1. The business of the Company is to be managed by or under the direction of the directors.
  2. The directors may exercise all the powers of the Company except any powers that the Act or this constitution requires the Company to exercise in general meeting.
  3. A rule made or resolution passed by the Company in general meeting does not invalidate any prior act of the directors which would have been valid if that rule or resolution had not been made or passed.
  4. The directors may pay all expenses incurred in promoting and forming the Company.

Borrowing powers

  1. Without limiting the generality of rule ‎64, but subject to rule ‎6, the directors may exercise all the powers of the Company to borrow money, to charge any property or business of the Company and to issue debentures or give any other security for a debt, liability or obligation of the Company or of any other person.

Appointment of attorney

  1. The directors may appoint any person or persons to be the attorney or attorneys of the Company for the purposes, with the powers and discretions (being powers and discretions vested in or exercisable by the directors), for the period and subject to the conditions they see fit.
  2. A power of attorney may contain the provisions for the protection and convenience of persons dealing with the attorney that the directors see fit and may also authorise the attorney to delegate all or any of the powers and discretions vested in the attorney.

Negotiable instruments

[compare replaceable rule 198B]

  1. Any 2 directors may sign, draw, accept, endorse or otherwise execute a negotiable instrument.
  2. The directors may determine that a negotiable instrument, including a class of negotiable instrument, may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

Delegation to Committee of Directors

[compare replaceable rule 198D]

  1. The directors may delegate any of their powers to a committee of directors and revoke the delegation.
  2. A committee must exercise the powers delegated to it in accordance with any directions of the directors. The exercise of the power by the committee is as effective as if the directors had exercised it.
  3. The meetings and proceedings of any committee of directors are governed by the provisions in this constitution regulating the meetings and proceedings of the directors.

Delegation generally

[compare replaceable rule 198D]

  1. For managing any affairs of the company in any specified locality the directors may:
    1. establish any local committees, boards (such as an advisory board) or branches;
    2. appoint any members of the Company or any nominated representative of a corporate member to be a member of the local committee, board or branch;
    3. appoint any managers or agents, fix their remuneration and delegate to them any of the powers vested in the directors; and
    4. authorise the members for the time being of the local committee, board or branch to fill any vacancies on it and to act despite vacancies.
  2. In the exercise of delegated powers, any committee formed (including a committee of directors and a local board or branch) or person or persons appointed to the committee must conform to any regulations that may be imposed by the directors. The committee may be authorised to sub-delegate any of the powers vested in it.
  3. A local committee, board or branch may remove any person appointed under rule ‎69.1(3) and may revoke or vary the delegation but no person dealing in good faith and without notice of the revocation or variation is affected by it.

Establishment of advisory boards

  1. A vote by the majority of the board of the Company may establish an advisor board to the directors for the Company which will advise the Company in the pursuit of its objects.
  2. The advisory board must consist of a minimum of 3 members and no more than 12 members.
  3. The members of the advisory board will be selected by the directors for their expertise in areas that will assist the Company in achieving its objects.
  4. A member of the advisory board will not be remunerated for the services they provide in that capacity.
  5. The advisory must report to the board of the Company in writing within a reasonable time of a request for advice by the board of the Company.
  6. The board of Company is under no obligation to act on the advice it receives from the advisory board.

Executive officer

[compare replaceable rule 201J]

Power to appoint

  1. The directors may appoint any person, not being a director, to the position of executive officer for the period and on the terms (including as to remuneration) the directors see fit.

Not a member of the board

  1. The executive officer is not a member of the board of the Company but may attend meetings of the directors except where the directors otherwise request.

Powers

  1. The directors may, upon terms and conditions and with any restrictions they see fit, confer on an executive officer any of the powers that the directors can exercise.
  2. Any powers so conferred may be concurrent with, or to the exclusion of, the powers of the directors.

Withdrawal of appointment or powers

  1. The directors may revoke or vary:
    1. an appointment; or
    2. any of the powers conferred on an executive officer.

Temporary appointments

  1. If an executive officer becomes incapable of acting in that capacity the directors may appoint any other person, not being a director, to act temporarily as executive officer.
  2. Removal and resignation of directors

Removal of directors

[compare section 203D]

  1. The Company may by resolution remove a director from office.

Resignation of director

[replaceable rule 203A]

  1. A director may resign as a director of the Company by giving a written notice of resignation to the Company at its registered office.

Vacation of office of director

[compare section 206B]

  1. In addition to any other circumstances in which the office of a director becomes vacant under the Act, the office of a director becomes vacant if the director:
    1. becomes bankrupt or suspends payment or compounds with his or her creditors;
    2. becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health;
    3. is not present (either personally or by an alternate director) at 3 consecutive meetings of directors without special leave of absence from the directors and the directors declare his or her seat to be vacant;
    4. ceases to be qualified as a director under rule ‎45;
    5. becomes disqualified from being a director under the Act or any order made under the Act;
    6. is removed from office in accordance with rule ‎76; or
    7. resigns from office in accordance with rule ‎77.

Directors’ interests

Prohibition on being present or voting

[compare section 195]

  1. Except where permitted by the Act a director who has a material personal interest in a matter that is being considered at a meeting of directors:
    1. must not be counted in a quorum;
    2. must not vote on the matter; and
    3. must not be present while the matter is being considered at the meeting.
  2. If a director who has a material personal interest in a matter that is being considered at a meeting of the directors is not prohibited by the Act from being present at the meeting and voting, the director may be present, be counted in the quorum and may be heard but may not vote on the matter.
  3. A director who is interested in any matter may, despite that interest, witness the fixing of the seal to any document evidencing or otherwise connected with that matter.

Director to disclose interests

[compare section 191]

  1. A director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company must, as soon as practicable after the relevant facts have come to the director’s knowledge, declare the nature of the interest at a meeting of the directors or by written notice to the secretary of the Company.
  2. A director who holds any office or possesses any property by which, whether directly or indirectly, duties or interests might be created in conflict with his or her duties or interests as director must declare at a meeting of the directors of the Company or by written notice to the secretary of the Company the fact and the nature, character and extent of the conflict.
  3. For the purposes of rules ‎80.1 and ‎80.2, a director’s interest or any conflict must be disregarded if it arises from or relates solely to:
    1. a guarantee to be given by the director (or by persons including the director or by a body corporate of which the director is a member or officer) in respect of a loan to the Company; or
    2. the position of the director as a director of a related body corporate.

Effect of interest in contract

[compare replaceable rule 194]

  1. Subject to the Act, if a director has an interest in a contract or proposed contract with the Company (other than as a member), or a conflicting interest or duty in relation to any other matter being considered by the directors, and the director discloses the nature and extent of the interest or duty at a meeting of the directors or by written notice to the secretary of the Company:
    1. the contract may be entered into; and
    2. if the disclosure is made before the contract is entered into:
      1. the director may retain benefits under the contract even though the director has an interest in the contract;
      2. the Company cannot avoid the contract merely because of the existence of the interest; and
      3. the director is not disqualified from the office of director.
  2. For the purposes of rule ‎81.1 contract includes an arrangement, dealing or other transaction.

Standing notice of interest

[compare section 192]

  1. A director who has an interest in a matter may give the other directors standing notice of the nature and extent of the interest in the matter. The notice may be given at any time and whether or not the matter relates to the affairs of the Company at the time the notice is given.
  2. A notice under the above rule may be given:
    1. at a directors’ meeting (either orally or in writing); or
    2. to the other directors individually in writing.
  3. If the standing notice is given to the other directors individually in writing:
    1. the notice is effective when it has been given to every director; and
    2. the notice must be tabled at the next directors’ meeting after it is given.
  4. The director must ensure that the nature and extent of the interest is recorded in the minutes of the meeting at which the standing notice is given or tabled.

Other interests

  1. Without limiting rule ‎80 or rule ‎81 a director may to the extent permitted by the Act:
    1. hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with the office of director;
    2. be interested in any operation, undertaking or business undertaken or assisted by the Company or in which the Company is or may be interested.

Extension of meaning of “Company”

  1. For the purposes of rules ‎80, ‎81 and ‎82 Company includes any subsidiary of the Company and any other company in which the Company or any subsidiary of the Company is or becomes a shareholder or is otherwise interested.

Other directorships and shareholdings

  1. A director of the Company may be or become a director, officer, employee or member of any company promoted by the Company or in which the Company may be interested as a vendor, shareholder or otherwise and is not accountable for any remuneration or benefits received as a director, officer, employee or member of the other company.
  2. Subject to the Act:
    1. the directors of the Company may exercise the voting power conferred by the shares or other interest held by the Company in another company in favour of a resolution appointing themselves or any of them as directors or other officers of the other company;
    2. any director of the Company may vote at a meeting of directors of the Company in favour of a resolution that the Company exercises its voting power conferred by the shares or other interest held by the Company in the other company to appoint that director as a director or other officer of the other company;
    3. any director of the Company may be appointed as representative of the Company and may vote at a general meeting of the other company in favour of a resolution appointing that director as a director or other officer of the other company; and
    4. a director of the Company who is also a director of the other company may vote as a director of the other company in whatever manner he or she sees fit, including voting in favour of a resolution appointing the director to any other office in the other company and a resolution appointing any other directors of the Company as directors or other officers of the other company.

Directors’ meetings

[compare sections 248A to 248G]

Circulating resolutions

[compare replaceable rule 248A]

  1. The directors may pass a resolution without a directors’ meeting being held if all the directors entitled to vote on the resolution (except a director absent from Australia who has not left a facsimile number or other contact details acceptable to the directors, at which he or she may be given notice) sign a document containing a statement that they are in favour of the resolution set out in the document.
  2. Separate copies of a document may be used for signing by directors if the wording of the resolution and statement is identical in each copy.
  3. The resolution is passed when the last director signs.
  4. A facsimile addressed to or received by the Company and purporting to be signed or sent by a director for the purpose of this rule ‎86 must be treated as a document in writing signed by that director.
  5. In this rule ‎86 a reference to all the directors does not include a reference to an alternate director whose appointor has signed the document, but an alternate director may sign the document in the place of his or her appointor.

Meetings of directors

  1. The directors may meet together for the despatch of business and adjourn and otherwise regulate their meetings as they see fit.

Calling directors’ meetings

[compare replaceable rule 248C]

  1. A director may at any time, and a secretary must on the requisition of a director, call a meeting of the directors.

Notice of meeting

[compare replaceable rule 248C]

  1. Reasonable notice of every directors’ meeting must be given to each director and alternate director except that it is not necessary to give notice of a meeting of directors to any director who:
    1. has been given special leave of absence; or
    2. is absent from Australia and has not left a facsimile number or other contact details acceptable to the directors at which he or she may be given notice.
  2. Any notice of a meeting of directors may be given in writing or orally, and whether by facsimile, telephone, electronic mail or any other means of communication.

Waiver of notice

  1. All resolutions of the directors passed at a meeting where a quorum is present but where notice of meeting has not been given to each director, or any act carried out under any of the resolutions, is as valid as if notice of meeting had been given to all directors if each director to whom notice was not given subsequently agrees to waive the notice.

Technology meeting of directors

[compare section 248D]

  1. A directors’ meeting may be held using telephone or, if consented to by all directors, other technology. The consent may be a standing one. A director may only withdraw the consent within a reasonable period before the meeting.
  2. If a directors’ meeting is held using any technology and all the directors take part in the meeting, they must be treated as having consented to the use of the technology for that meeting.
  3. The following provisions apply to a technology meeting:
    1. each of the directors taking part in the meeting must be able to hear and be heard by each of the other directors taking part in the meeting; and
    2. at the commencement of the meeting each director must announce his or her presence to all the other directors taking part in the meeting.
  4. If the secretary is not present at a technology meeting 1 of the directors present or another person nominated by them present at the meeting must take minutes of the meeting.
  5. A director may not leave a technology meeting by disconnecting his or her link to the meeting unless that director has previously notified the chair of the meeting.
  6. A director is conclusively presumed to have been present and to have formed part of a quorum at all times during a technology meeting unless that director has previously obtained the express consent of the chair to leave the meeting.

Chairing directors’ meetings

[compare replaceable rule 248E]

  1. The president is the chair of all meetings of the directors.
  2. At a meeting of directors if:
    1. no president has been elected as provided by rule ‎54; or
    2. the president is not present within 10 minutes after the time appointed for the holding of the meeting or is unwilling to act;

    the vice-president is the chair of the meeting, but if:

    1. no vice-president has been elected as provided by rule ‎54; or
    2. the vice-president is not present within 10 minutes after the time appointed for the holding of the meeting or is unwilling to act;

    the directors present must elect a director present to chair the meeting.

Quorum

[compare replaceable rule 248F]

  1. The quorum for a directors’ meeting is 2 directors entitled to vote or a greater number determined by the directors. The quorum must be present at all times during the meeting.
  2. An alternate director is counted in a quorum at a meeting at which the director who appointed the alternate is not present (so long as the alternate is, under the Act relating to directors’ interests, entitled to vote).

Passing of directors’ resolutions

[compare replaceable rule 248G]

  1. A resolution of the directors must be passed by a majority of the votes cast by directors entitled to vote on the resolution.
  2. The chair has a casting vote if necessary in addition to any vote he or she has as a director. The chair has a discretion both as to whether or not to use the casting vote and as to the way in which it is used.
  3. A person who is an alternate director is entitled (in addition to his or her own vote if he or she is a director) to 1 vote on behalf of each director whom he or she represents as an alternate director at the meeting and who is not present at the meeting.
  4. Remuneration of directors

No directors’ remuneration

[compare section 150]

  1. Despite rule ‎6.2 no director may receive any remuneration for his or her services in his or her capacity as a director of the Company.

Directors’ expenses

  1. Despite rule ‎95 the Company may pay the directors’ travelling and other expenses that they properly incur:
    1. in attending directors’ meetings or any meetings of committees of directors;
    2. in attending any general meetings of the Company; and
    3. in connection with the Company’s business.
  2. The directors must approve all payments the Company makes to its directors.

Financial benefit

[compare Chapter 2E – sections 207 and following]

  1. A director must ensure that the requirements of the Act are complied with in relation to any financial benefit given by the Company to the director or to any other related party of the director.
  2. Subject to the Act and the provisions of this constitution dealing with loans to members, the Company may make loans to directors or provide guarantees or security for obligations undertaken by directors.

Secretary

Appointment of secretary

[compare section 204A]

  1. The directors must, in accordance with the Act, appoint 1 or more secretaries.
  2. The directors may appoint a person as an acting secretary or as a temporary substitute for a secretary.

Terms of office of secretary

[compare replaceable rule 204F]

  1. A secretary of the Company holds office on the terms and conditions (including as to remuneration) that the directors determine.

Indemnity and insurance

Indemnity

[compare section 199A]

  1. To the extent permitted by the Act, the Company indemnifies:
    1. every person who is or has been an officer of the Company; and
    2. where the board of directors considers it appropriate to do so, any person who is or has been an officer of a related body corporate of the Company;
    3. against all losses, liabilities, costs, charges and expenses incurred by that person in his or her capacity as an officer of the Company or of the related body corporate (as the case may be). This indemnity includes, without limitation:

    4. a liability for negligence; and
    5. a liability for reasonable legal costs on a solicitor client basis including in respect of civil or criminal proceedings except to the extent prohibited by section 199A(3) of the Corporations Act.
  2. The indemnity does not extend to and is not an indemnity against any amount in respect of which the indemnity would otherwise be illegal, void or unenforceable or not permitted by law and does not operate in respect of any liability of the officer to the extent that liability is covered by insurance.
  3. In accordance with section 199A of the Act, the Company must not indemnify a person against:
    1. any of the following liabilities incurred as an officer of the Company:
      1. a liability owed to the Company or a related body corporate;
      2. a liability for a pecuniary penalty order under section 1317G of the Act or a compensation order under section 1317H of the Act; or
      3. a liability that is owed to someone other than the Company or a related body corporate and did not arise out of conduct in good faith; or
    2. legal costs incurred in defending an action for a liability incurred as an officer of the Company if the costs are incurred:
      1. in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under rule ‎100.3(1);
      2. in defending or resisting criminal proceedings in which the person is found guilty;
      3. in defending or resisting proceedings brought by the Australian Securities and Investments Commission or a liquidator for a court order if the grounds for making the order are found by the Court to have been established; or
      4. in connection with proceedings for relief to the person under the Act in which the Court denies the relief.

      Rule ‎100.3(2)(c) does not apply to costs incurred in responding to actions taken by the Australian Securities and Investments Commission or a liquidator as part of an investigation before commencing proceedings for a court order.

    3. For the purposes of rule ‎100.3(2) the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
  4. An officer must:
    1. give notice to the Company promptly on becoming aware of any Claim against the officer that may give rise to a right to be indemnified by the Company;
    2. take such action as the Company reasonably requests to avoid, dispute, resist, appeal against, compromise or defend any Claim or any adjudication of a Claim;
    3. not make any admission of liability in respect of or settle any Claim without the prior written consent of the Company;
    4. allow the Company or its insurers to assume the conduct, negotiation or defence of any Claim and, on request by the Company, render all reasonable assistance and co-operation to the Company or its insurers in the conduct of any Claim, including giving the Company or its insurers any document, authority or direction that the Company or its insurers may reasonably require for the prosecution or advancement of any counterclaim or cross-claim;
    5. on request by the Company or its insurers, do everything necessary or desirable which the Company reasonably requests to enable the Company or its insurers (so far as it is possible) to be subrogated to and enjoy the benefits of the officer’s rights in relation to any counterclaim or cross-claim or any claims against any third party and render such assistance as may be reasonably requested by the Company or its insurers for that purpose; and
    6. notify any Claim to an insurer or any other person who may be liable to indemnify the officer in respect of that Claim and promptly take all reasonable steps to enforce all the officer’s rights against the insurer or other person.
  5. In rule ‎100.4 Claim means:
    1. any writ, summons, cross-claim, counterclaim, application or other originating legal or arbitral process against an officer as an officer of the Company;
    2. any hearing, complaint, inquiry, investigation, proceeding or application commenced or originating against an officer as an officer of the Company; or
    3. any written or oral demand or threat that might result in the officer reasonably believing that any such process, hearing, complaint, inquiry, investigation, proceeding or application referred to in rule ‎100.5(1) or ‎100.5(2) may be initiated.
  6. If an officer of the Company becomes personally liable for the payment of any sum primarily due from the Company, and the officer may be indemnified under rule ‎100.1, the directors may, despite the interest (if any) of the directors or any of them, execute or cause to be executed a mortgage, charge or security over or affecting the whole or any part of the assets or undertaking of the Company by way of indemnity to secure the officer so becoming liable from any loss in respect of that liability.

Insurance

[compare section 241A]

  1. The Company may pay or agree to pay a premium in respect of a contract insuring a person who is or has been an officer of the Company or a related body corporate of the Company against any liability incurred by the person as an officer of the Company or a related body corporate except a liability (other than one for legal costs) arising out of:
    1. conduct involving a wilful breach of duty in relation to the Company; or
    2. a contravention of section 182 or 183 of the Act.

Director voting on contract of indemnity or insurance

[compare section 191(2)(vi)]

  1. Despite anything in this constitution, a director is not precluded from voting in respect of any contract or proposed contract of indemnity or insurance, merely because the contract indemnifies or insures or would indemnify or insure the director against a liability incurred by the director as an officer of the Company or of a related body corporate.

Liability

  1. An officer of the Company is not liable for the act, neglect or default of any other officer or for joining in any act or for any other loss, expense or damage which arises in the execution of the duties of his or her office unless it arises through his or her own negligence, default, breach of duty or breach of trust.

Meaning of “officer”

  1. For the purposes of rules ‎100, ‎101, ‎102 and ‎103, officer means a director or secretary or a member of a local committee, board or branch appointed under rule ‎69.1.

Winding up

Winding up

  1. If the Company is wound up, any property that remains, after satisfaction of all the Company’s debts and liabilities, must not be paid to or distributed among the members of the Company but must be given or transferred to some other institution or institutions determined by the members of the Company at or before the time of dissolution, which has similar objects to the Company and to which income tax deductible gifts can be made.
  2. If the members do not make the necessary determination under rule ‎105.1, the Company may apply to the Supreme Court to determine the institution or institutions.
  3. Surplus gifts

Surplus gifts

If endorsement (if any) of the Company as a deductible gift recipient is revoked, any surplus gifts that have been made to the Company that remain, after satisfaction of all the Company’s debts and liabilities, must not be paid to or distributed among the members of the Company but must be given or transferred to some other institution or institutions determined by the members of the Company at or before the time of dissolution which, has similar objects to the Company and to which income tax deductible gifts can be made.

Minutes

Minutes to be kept

[compare section 251A]

  1. The directors must keep minute books which may include in electronic form, in which they record within 1 month:
    1. proceedings and resolutions of meetings of the Company’s members;
    2. proceedings and resolutions of directors’ meetings (including meetings of a committee of directors);
    3. resolutions passed by members without a meeting;
    4. resolutions passed by directors without a meeting; and
    5. if the minute book is kept in electronic form, it must be readily able to be printed.
  2. The directors must ensure that minutes of a meeting are signed within a reasonable time after the meeting by 1 of the following:
    1. the chair of the meeting; or
    2. the chair of the next meeting.
  3. The directors must ensure that minutes of the passing of a resolution without a meeting are signed by a director within a reasonable time after the resolution is passed.
  4. Without limiting rule ‎107.1 the directors must record in the minute books:
    1. all appointments of officers;
    2. the names of the directors and alternate directors present at all meetings of directors and the Company;
    3. in the case of a technology meeting, the method by which the meeting was held;
    4. all orders resolutions and proceedings of general meetings and of meetings of the directors and of committees formed by the directors;
    5. proxy votes exercisable and exercised in respect of each resolution at a meeting; and
    6. all other matters required by the Act to be recorded in the minute books, including each notice and standing notice given by a director of a material personal interest in a matter that relates to the affairs of the Company.

Inspection of records

Rights of inspection

[compare replaceable rule 247D and sections 173, 198F, 247A and 251B]

  1. The directors of the Company, or the Company by a resolution passed at a general meeting, may authorise a member to inspect books of the Company.
  2. A member other than a director does not have the right to inspect any document of the Company, other than the minute books for the meetings of its members and for resolution of members passed without meetings, except as provided by law or authorised by the directors or by the Company in general meeting.
  3. Directors have the rights of inspection and access provided by section 198F of the Act.

Confidential information

  1. Except as provided by the Act, no member (not being a director) is entitled to require or receive any information concerning the business, trading or customers of the Company or any trade secret, secret process or other confidential information of or used by the Company.

Accounts, audit and records

Accounts

[compare sections 285-297, 314-317]

  1. The directors must cause proper accounting and other records to be kept in accordance with the Act.
  2. The directors must distribute copies of every financial statement (including every document required by law to be attached to it) as required by the Act.

Audit

[compare sections 301, 327-331]

  1. A registered company auditor must be appointed.
  2. The remuneration of the auditor must be fixed and the auditor’s duties regulated in accordance with the Act.

Execution of documents

Common seal

  1. The Company may, but need not, have a common seal.

Use of common seal

[compare sections 127(2) and 129(6)]

  1. If the Company has a common seal the directors must provide for its safe custody.
  2. The common seal may not be fixed to any document except by the authority of a resolution of the directors or of a committee of the directors duly authorised by the directors.
  3. The Company executes a document with its common seal if the fixing of the seal is witnessed by:
    1. 2 directors of the Company;
    2. a director and a company secretary of the Company; or
    3. a director and any other person authorised by the directors for that purpose.

Execution of documents without common seal

[compare sections 127(1) and 129(5)]

  1. The Company may execute a document without using a common seal if the document is signed by:
    1. 2 directors of the Company; or
    2. a director and a company secretary of the Company.

Execution of document as a deed

[compare section 127(3)]

  1. The Company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with rule ‎113 or rule ‎114.

Execution – general

[compare sections 129(5), 129(6) and 127(4)]

  1. The same person may not sign in the dual capacities of director and secretary.
  2. A director may sign any document as director, with or without the common seal, although the document relates to a contract, arrangement, dealing or other transaction in which he or she is interested and his or her signature complies with the requirements of this constitution as to execution despite his or her interest.
  3. Rules ‎113 and ‎114 do not limit the ways in which the directors may authorise documents (including deeds) to be executed on behalf of the Company.

Notices

Notices other than notices of meeting

  1. Any notice by the Company to a member may be given in the same way as a notice of meeting may be given under rule ‎15, and the time the notice is taken to be given is the same as provided in the case of a notice of meeting by rule ‎16.

Inadvertent omissions

Formalities omitted

[compare section 1322]

  1. If some formality required by this constitution is inadvertently omitted or is not carried out the omission does not invalidate anything, including any resolution, which but for the omission would have been valid unless it is proved to the satisfaction of the directors that the omission has directly prejudiced any member financially. The decision of the directors is final and binding on all members.

Alterations

Alterations

  1. If the Company is approved by the Australian Taxation Office as a company to which income tax deductible gifts can be made, the Australian Taxation Office must be notified in writing of any alterations to this constitution.

Electronic communication

Production of electronic communication

  1. If the Company is required to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the Company produces by means of electronic communication an electronic form of the document where all the requirements of production of documents in section 11 of the Electronic Transactions Act 1999 (as amended and replaced) have been satisfied.

Retention of electronic communication

  1. If the Company is required to record information in writing, that requirement is taken to have been met if the Company records the information in an electronic form where all the requirements of retention of documents in section 12 of the Electronic Transactions Act 1999 (as amended and replaced) have been satisfied.

Signing

Signing

  1. The persons whose names are written below agree to this constitution and to be members of the Company.
    • Katherine Szuminska
    • Matthew Landauer
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