RBTA Constitution

CONSTITUTION

of

Rare Breeds Trust of Australia

 

Dated as at Special General Meeting 6 May 2024

1.1 Definitions

In this Constitution:

"ABN" means Australian Business Number.

"Alternate Director" means a person for the time being holding office as an alternate director of the Company under Article 12.6.

"Board" means the board of Directors from time to time.

"Breed Association" means a Corporation representing one or more livestock breeds within the scope of the work of the Company.

"Business Day" means a day except a Saturday, Sunday or public holiday.

"Chairperson" means the person appointed under Article 15.7 or 11.7 (as the case may be).

"Company" means the company named above whatever its name may be from time to time.

"Corporation" means an Organisation including a Company or an Incorporated Body. A Corporation has an ABN.

"Corporations Act" mean the Corporations Act 2001 (Cth), to the extent to which it applies to the Company and all amending or replacement legislation.

"Deductible Gift Recipient" has the meaning given to it by the Income Tax Assessment Act 1997 (Cth).

"Director" means a director of the Company for the time being.

"Family Members" are two or more natural persons from the same family, and approved for membership by the Board of the Rare Breeds Trust of Australia.

"Individual Member" means a natural person aged 18 years or over, and approved for membership by the Board of the Rare Breeds Trust of Australia.

"Income Tax Exempt Entity" means an entity endorsed as exempt from income tax under sub-division 50-B of the Income Tax Assessment Act 1997 (Cth).

"Junior Member" means a natural person under the age of 18, and who is approved for membership by the Board of the Rare Breeds Trust of Australia.

"Life Member” means a natural person granted Life Membership by majority resolution at the Annual General Meeting of the Company.

"Member" means a person who is a member of the Company pursuant to the Corporations Act.

"Natural Person” means a living human being.

"Officer" has the meaning given in section 9 of the Corporations Act.

“Organisation Member“ means a business or organisation with an ABN, and that is approved for membership by the Board of the Rare Breeds Trust of Australia, and that is not a Breed Association.

"Patron Member" means a person of note appointed by majority vote of the Board of the Company.

"Pensioner Member" means a natural person in receipt of an Australian Government pension. and approved for membership by the Board of the Rare Breeds Trust of Australia. Pensions are the Age Pension or Disability Support Pension or equivalent pensions.

"Prescribed Notice" means the Proscribed Period or any shorter period of notice for a meeting allowed under the Corporations Act.

"Prescribed Period" means 21 days.

"Principal Purpose" has the meaning given to it in Article 2(a).

"Register" means the register of Members kept under the Corporations Act.

"Secretary" means the secretary for the time being of the Company.

"Technology" includes radio, telephone, closed circuit television or other electronic means or telecommunications device for audio or audio-visual communication.

"Trust Deed" means the Deed establishing the Rare Breeds Trust of Australia Charitable Trust Fund as altered or varied by any alterations or variations lawfully made, and a copy of which is annexed to this Constitution

1.2 Interpretation

(a) In this Constitution:

1. (i) subject to Article 11.6(c), a Member is taken to be present at a meeting of Members if the Member is present in person or by proxy; and 
2.  
3. (ii) a reference to a notice or document in writing includes a notice or document given by fax or another form of written communication.

(b) In this Constitution, headings are for convenience only and do not affect interpretation, and unless the context indicates a contrary intention:

(i) words importing the singular include the plural (and vice versa);

(ii) words indicating a gender include every other gender;

(iii) the word "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;

(iv) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; and

(v) the word "includes" in any form is not a word of limitation.

(c) Unless the context indicates a contrary intention, in this Constitution:

(i) a reference to an Article is to an article of this Constitution; and

(ii) a reference to this Constitution is to this Constitution (and where applicable any of its provisions) as modified or repealed from time to time.

(iii) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it.

1.3 Exercise of Powers

Where this Constitution confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty must be performed from time to time as the occasion requires.

1.4 Severing invalid provisions

If at any time any provision of this Constitution is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that does not affect or impair:

(a) the legality, validity or enforceability in that jurisdiction of any other provision of this Constitution; or

(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Constitution.

1.5 Application of Corporations Act

Except so far as a contrary intention appears anywhere in this Constitution:

(a) an expression used in a particular Part or Division of the Corporations Act which is given a special meaning by any provision of that Part or Division for the purposes of the whole or any part of that Part or Division has, in any provision of this Constitution which deals with a matter dealt with by the whole or any part of that Part or Division, the same meaning as in that Part or Division; and

(b) an expression which is given a general meaning by any provision of the Corporations Act has the same meaning in this Constitution.

1.6 Replaceable rules

Each of the provisions of the sections or sub‑sections of the Corporations Act referred to as a replaceable rule in accordance with section 135(1) of the Corporations Act shall apply to the Company unless and to the extent expressly displaced by this Constitution.

1.7 Powers of the Company

Subject to the Corporations Act, the Company has all the powers necessary to achieve its objects, including the power to deal with real and personal property and the power to employ persons.

(a) The principal purpose (the "Principal Purpose") of the Company is to protect endangered domestic livestock breeds in Australia and educate its members and the public on the need for the conservation and breeding of endangered domestic farm livestock in Australia to ensure their survival worldwide and in particular:

(i) to become and act as the trustee of and administer a gift fund to be founded by Rare Breeds Trust of Australia and to be called the "Rare Breeds Trust of Australia Fund", such fund to be established by the Trust Deed on or about the date of this Constitution;

(ii) to preserve, promote and protect breeds of domestic livestock which are in danger of extinction in Australia and worldwide;

(iii) to preserve, promote and protect breeds of domestic livestock which form part of Australia's heritage;

(iv) to strengthen the appeal of endangered breeds of domestic livestock to the domestic and overseas food markets;

(v) to maintain international links with organisations striving to stabilize and increase the genetic diversity between and within agricultural livestock breeds;

(vi) to provide an active forum on domestic livestock for the communication of information and for the education of members and of the public;

(vii) to undertake educational activities and any other activities conducive to the achievement of the foregoing objectives of the Company; and

(viii) To provide educational material and the resources for the collection and storing of endangered domestic livestock genetics in Australia for future security.

(b) The Company will apply the income and property of the Company solely towards promoting the objects of the Company as stated in Article 2(a). 

(c) The Company must conduct its activities in furtherance of the Principal Purpose in Australia and for the benefits of persons in Australia.

(d) Without limiting the generality of Article 2(c), the Company must at all times have a physical presence in Australia and, to that extent, must incur its expenditure and pursue the Principal Purpose principally in Australia.

The Company will not make any distributions of Company property or income to any Members except, with the approval of the Board, for the payment in good faith of reasonable remuneration to any Member in consideration for services rendered or goods supplied by that Member to the Company in the ordinary course of business.

4.1 Deductible Gift Recipient

(a) The Company in its capacity as trustee under the Trust Deed must endeavour to become a Deductible Gift Recipient.

(b) The Company must notify the Australian Taxation Office if it ceases to be entitled to be endorsed as a Deductible Gift Recipient.  The Company must undertake reviews on a regular basis to assess the foregoing.

4.2 Income Tax Exempt Entity

(a) The Company must endeavour to become and remain an Income Tax Exempt Entity.

(b) The Company must notify the Australian Taxation Office if there is a material change in the purposes or activities of the Company such that it ceases to be entitled to be endorsed as an Income Tax Exempt Entity.  The Company must undertake reviews on a regular basis to assess the foregoing.

The Company must establish and maintain a gift fund in accordance with clause 3 of the Trust Deed.

6.1 Admission of new Members

(a) Subject to Article 6.1(d), any person or organisation shall be eligible for membership of the Company.

(b) Every applicant for membership of the Company (other than those specified in the Company's application for registration) shall execute and deliver to the Company an application for membership in such form as the Board may from time to time determine together with the entrance fee (if any) determined by the Board.

(c) The Board may admit an individual or organisation as a new Member

(d) The Board may impose qualifications to admission as a Member to the Company as it thinks fit from time to time ("Membership Qualifications") and may, in its absolute discretion, decline to admit any person as a Member in accordance with the Membership Qualifications.

6.2 Agreement of Members

Each Member agrees with each other Member and the Company as a condition of admission to membership and continuing membership of the Company to:

(a) comply with this Constitution including without limitation the obligations imposed by Article 9;

(b) pay such entrance fees, annual subscription fees and other fees as may be prescribed in accordance with this Constitution from time to time; and

(c) comply with all other terms of membership applicable to the Member, including qualifications and obligations.

6.3 Power to decline admission to Membership

(a) The Board may, in its absolute discretion, decline to admit any person as a Member and shall not be under any obligation to give any reason for rejecting an application for membership.

(b) A person shall be advised of their admission or non-admission, but their admission shall not take effect until they have paid the first year's subscription fee or such other fees, if any, prescribed by the Board.  Subject to Article 6.3(c), no fees shall be refundable unless specifically provided by the Board.

(c) The Board shall return to any unsuccessful application for admission to membership any entrance fee paid by that person.

6.4 Power to suspend admission of Members

The Board may suspend the admission of Members at such times and for such periods as they think fit.

6.5 Membership not transferable

Membership rights are not transferable whether by operation of law or otherwise and all rights and privileges of membership of the Company shall cease upon a person ceasing to be a Member whether by resignation, death, winding up or otherwise.

6.6 Further information

An applicant for membership of Company shall provide in writing such other information in addition to that contained in the application as the Board requires.

6.7 Certificates

(a) A certificate of membership may be issued by the Company to any Member.

(b) A certificate of membership shall remain the property of the Company and on demand in writing by the Secretary must be returned to the Company.

7.1 Fees

Members must pay annual membership fees and such other fees in such amounts and at such times as the Board may from time to time determine.

7.2 Levies

In order to provide additional funds required for the operation of the Company, the Board may:

(a) determine that levies are to be paid by Members; and

(b) fix the amount and the dates for payment of such levies, but until so determined, no levies shall be payable by Members.

7.3 Different fees or levies payable

In determining fees or levies under this Article 7, the Board may:

(a) differentiate between classes of Members as to the amounts of fees or levies payable; and

(b) impose concessionary rates, applicable for any class of membership,

as it sees fit.

7.4 Concessions

In determining fees or levies under this Article 7, the Board may determine fees or levies on a concessionary basis.

8.1 Classes of Membership

(a) Membership shall be of two types:

(i) Natural Person, and

(ii) Corporation.

(b) Natural Person Member classes are:

(i) Persons aged 18 and over ("Individual Membership");

(ii) Persons under the age of 18 ("Junior Membership");

(iii) Person in receipt of an Australian Government Pension ('Pensioner Membership");

(iv) Two or more persons in the same family ("Family Membership");

(v) Life Member; and

(vi) Patron Member.

(c) Corporation Member classes are:

(i) Breed Associations ("Breed Association"); and

(ii) Organisation ("Organisation");

8.2 Natural Person membership classes

8.2.1 Individual Member

(a) Individual Members can become Members of the Company at the discretion of the Board.

(b) Individual Members have the right to vote at Meetings of the Company.

8.2.2 Junior Member

(a) Junior Members can become Members of the Company at the discretion of the Board.

(b) Junior Members do not have the right to vote at Meetings of the Company.

8.2.3 Pensioner Member

(a) Pensioner Members can become Members of the Company at the discretion of the Board.

(b) Pensioner Members have the right to vote at Meetings of the Company.

8.2.4 Family Member

(a) Family Members can become Members of the Company at the discretion of the Board.

(b) Family Members have two votes at Meetings of the Company.

8.2.5 Life Member

(a) Life Membership may be granted to a Member who has given outstanding service to the Company for an extended period of time. The appointment of a Life Member shall be by resolution by the Annual General meeting on the recommendation of the Board as the Board sees fit. 

(b) Life Members have the right to vote at Meetings of the Company.

8.2.5 Patron Member

(a) Patron Membership may be granted to a person on the resolution of the Board.

(b) Patron Members do not have the right to vote at Meetings of the Company.

8.3 Corporation Member classes

8.3.1 Breed Association Member 

(a) Breed Associations can become members of the Company at the discretion of the Board. 

(b) Breed Association members have a single vote at Meetings of the Company.

8.3.2 Organisation Member 

(a) Organisations can become members of the Company at the discretion of the Board. 

(b) Organisation members have a single vote at Meetings of the Company.

 

(a) The Company is a company limited by guarantee.

(b) The liability of the Members is limited.

(c) Each Member undertakes to contribute an amount not exceeding $10.00 to the property of the Company if the Company is wound up while he or she is a Member or within one year after he or she ceases to be a Member, for:

(i) payment of the debts and liabilities of the Company contracted before that person ceased to be a Member; and

(ii) payment of the costs, charges and expenses of winding up the Company; and

(iii) adjustment of the rights of the contributories among themselves.

10.1 Resignation

(a) A Member may resign as a Member on giving the Company 30 days' notice in writing of his or her intention to resign as a Member of the Company.

(b) A person ceases to be a Member  30 days from the date the Company receives the notice contemplated in Article 10.1(a).

(c) A resignation under Article 10.1(a) is effective as a resignation under Article 12.6(a) and, in accordance with Article 12.5, on ceasing to be a Member of the Company the person ceases to be a Director of the Company.

10.2 Non‑compliance with Constitution or misconduct

(a) If:

(i) a Member wilfully refuses or neglects to comply with the provisions of this Constitution;

(ii) a Member provides information on their application for membership which is materially misleading; or

(iii) the conduct of a Member appears to a majority of the Board unbecoming a Member having regard to Article 2 of this Constitution or prejudicial to the interests of the Company,

 the Board may, subject to this Article 10.2, by resolution expel the Member from the Company.

(b) Any Member whose conduct is being assessed by the Board under this Article 10.2 must not vote in his or her capacity as a Director on a resolution contemplated in Article 10.2(a).

(c) A Member will be given at least 7 days' notice of the meeting of the Board at which a resolution referred to in Article 10.2(a) is to be put.

(d) A notice under Article 10.2(c) must:

(i) specify the allegations against the Member; and

(ii) state the proposed resolution.

(e) Before the passing of any resolution referred to in Article 10.2(a), a Member will have the opportunity of giving orally, or in writing, any explanation or defence the Member may think fit at the meeting referred to in Article 10.2(a).

10.3 Cessation of membership

A person will cease to be a Member:

(a) if the Member resigns in accordance with Article 10.1(a) or by virtue of Article 12.6(a);

(b) if the Member is expelled under article 10.2; or

(c) if that Member:

(i) dies;

(ii) 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;

(iii) becomes insolvent within the meaning of the Corporations Act;

(iv) becomes an externally administrated body corporate within the meaning of the Corporations Act; or

(v) suffers or permits a controller, within the meaning of the Corporations Act¸ to enter into possession or assume control of any portion of its assets or undertaking.

10.4 Continuing rights, liabilities, etc

(a) The cessation of a Member's membership (whether by resignation or expulsion) shall not in any way prejudice, lessen or affect the rights, duties, liabilities and obligations of a Member whether they:

(i) arise under this Constitution or otherwise; or

(ii) are existing at the date of such termination or may arise or crystallise after that date out of or by reason of facts or circumstances occurring or in existence at or before that date.

(b) Without limiting the generality of Article 10.4(a), cessation of a Member's membership shall not relieve a Member from any obligation to record or account for or pay any levies or fees referred to in Article 7.

11.1 Who can call meetings of Members

(a) Subject to the Corporations Act, the Board may call a meeting of Members at a time and place as the Board resolves.

(b) The Board must call and arrange to hold a general meeting on the request of Members made in accordance with the Corporations Act.

(c) The Members may call and arrange to hold a general meeting as provided by the Corporations Act.

11.2 Annual General Meeting

(a) The Company must hold an annual general meeting if required by, and in accordance with, the Corporations Act.

(b) The business of an annual general meeting may include any of the following, even if not referred to in the notice of the meeting:

(i) the consideration of the annual financial report, directors' report and auditor's report for the Company;

(ii) the election of Directors;

(iii) the appointment of the auditor of the Company; and

(iv) the fixing of the remuneration of the auditor of the Company.

11.3 How to call meetings of Members

(a) The Company must give not less than the Prescribed Notice of a meeting of Members.

(b) Notice of a meeting of Members must be given to each Member, each Director, each Alternate Director and any auditor of the Company.

(c) Subject to the Article 11.15, a notice of a meeting of Members must:

(i) set out the place, date and time for the meeting (and if the meeting is to be held in two or more places, the Technology that will be used to facilitate this);

(ii) state the general nature of the business of the meeting; and

(iii) set out or include any other information or documents specified by the Corporations Act.

(d) A person may waive notice of any meeting of Members by notice in writing to the Company to that effect.

11.4 Right to attend meetings

(a) Each Member and any auditor of the Company is entitled to attend all meetings of Members.

(b) Subject to this Constitution, each Director is entitled to attend and speak at all meetings of Members.

11.5 Meeting of Members at more than one place

(a) A meeting of the Members called in accordance with this Constitution may be held in two or more separate meeting places linked together by an instantaneous audio‑visual communication device or any other Technology which, by itself or in conjunction with other arrangements:

(i) gives the Members in the separate meeting places a reasonable opportunity to participate in proceedings;

(ii) enables the Chairperson to be aware of proceedings in each such place; and

(iii) enables the Members in each such place to vote on a show of hands and on a poll.

(b) A Member present at one of the separate meeting places is taken to be present at the meeting of the Members and is entitled to exercise all rights which the Member is granted under this Constitution.

(c) Where a meeting of the Members is held in two or more separate places pursuant to Article 11.5(a), that meeting will be deemed to have been held at one of those places as is determined by the Chairperson of the meeting.

11.6 Quorum

(a) The provisions of section 249T of the Corporations Act that apply as a replaceable rule are displaced.

(b) A quorum for a meeting of Members is 10 Members (or 5% of Members whichever is the less) in all case being Members who have the right to vote at that meeting.

(c) For the purposes of determining whether a quorum is present a Member who is present in their own capacity and as a proxy of another Member will be counted only once.

(d) No business can be transacted at any meeting of Members unless the requisite quorum is present at the commencement of the meeting.

(e) If a quorum is present at the beginning of a meeting of Members it is deemed present throughout the meeting unless the Chairperson otherwise declares on the Chairperson's own motion or on the motion of a Member eligible to vote.

(f) If half an hour after the time appointed for a meeting of Members a quorum is not present:

(i) a meeting called by the Board on request of the Members or called by the Members as is provided by the Corporations Act, will be dissolved; and

(ii) in any other case, the meeting will be adjourned to the date, time and place as the Board may by notice to the Members appoint, but failing such appointment, then to the same day in the next week at the same time and place as the meeting adjourned.

(g) If after half an hour from the time appointed for an adjourned meeting of the Members, a quorum is not present, the Members present (being not less than three) shall be a quorum.

11.7 Chairperson

(a) The provisions of section 249U of the Corporations Act that apply as a replaceable rule are displaced.

(b) The Chairperson (being the person appointed pursuant to Article 15.7) will chair meetings of the Members and has charge of the general conduct of the meeting and of the procedures to be adopted at that meeting.

(c) If at any meeting of Members the Chairperson is not present within 15 minutes of the time appointed for holding the meeting, a majority of those Directors present may choose another Director as Chairperson of that meeting of the Members or part of that meeting (as the case may be).

(d) In the case of an equality of votes at any meeting of the Members, the Chairperson of the meeting has a casting vote both on a show of hands and on a poll, in addition to any votes to which the Chairperson is entitled in his or her capacity as a Member.

11.8 General conduct of meetings

(a) Subject to the Corporations Act, the Chairperson will be responsible for the general conduct of meetings of Members and for the procedures to be adopted at meetings of Members.

(b) The Chairperson may delegate the powers conferred by this Article 11.8 to such person or persons as he or she thinks fit.

(c) Nothing contained in this Article 11.8 will be taken to limit the powers conferred on the Chairperson by law.

11.9 Failure to give notice

Subject to the Corporations Act, the accidental omission to give notice of any meeting of the Members to, or the non-receipt of that notice by, any of the Members will not invalidate any resolution passed at that meeting.

11.10 Special Resolution

If a special resolution is to be proposed, the notice of meeting must set out an intention to propose the special resolution and state the resolution.

11.11 Representation of Member

A Member may be present and vote in person or may be represented at any meeting of the Company by:

(a) proxy;

(b) legal practitioner or validly appointed attorney; or

(c) in the case of a body corporate which is a Member, a representative.

11.12 Voting at meetings of Members

Voting at meetings of Members will be conducted in accordance with the Corporations Act.

11.13 Voting Rights

(a) Subject to Article 11.13(c), on a show of hands, each Member present in person and each other person present as a proxy, attorney or representative of a Member has one vote.

(b) Subject to Article 11.13(c), all Members shall have one vote.

(c) A vote by a Family Member shall be counted as two votes.

11.14 Questions decided by majority

Subject to the requirements of the Corporations Act in relation to special resolutions, a resolution will be taken to be carried if more votes are cast in favour of the resolution than against it.

11.15 Postponement or cancellation of Meeting

(a) Where a general meeting is convened by the Board, it may, whenever it thinks fit, cancel the meeting or postpone the holding of the meeting to a date and time determined by them;

(b) Written notice of cancellation or postponement of a general meeting must be given to each Member individually and to each and such other person as is entitled under the Corporations Act or this Constitution and must specify the reason for cancellation or postponement (as the case may be); and

(i) a notice postponing the holding of a general meeting must specify:

1. a date and time for the holding of the meeting;

2. a place for the holding of the meeting which may be either the same as or different from the place specified in the notice convening the meeting; and

3. if the meeting is to be held in two or more places, the technology that will be used to facilitate the holding of the meeting in that manner.

(c) The number of Business Days from the giving of a notice postponing the holding of a general meeting to the date specified in that notice for the holding of the postponed meeting must not be less than the Prescribed Period.

11.16 Quorum at a postponed meeting

A quorum at a general meeting that has been postponed is five Members (in all cases being Members who have the right to vote at that meeting).

11.17 Business of postponed meeting

The only business that may be transacted at a general meeting the holding of which is postponed is the business specified in the notice of the general meeting convening the meeting.

11.18 Resolutions of Members

(a) Subject to the Corporations Act, a resolution is passed if more votes are cast in favour of the resolution by Members entitled to vote on the resolution than against the resolution.

(b) Unless a poll is requested in accordance with Article 11.19, a resolution put to the vote at a meeting of Members must be decided on a show of hands.

(c) A declaration by the Chairperson of a meeting of Members that a resolution has on a show of hands is passed, passed by a particular majority, or not passed, and an entry to that effect in the minutes of the meeting, are sufficient evidence of that fact, unless proved incorrect.

11.19 Polls

(a) A poll may be demanded on any resolution at a meeting of Members except:

(i) the election of a Chairperson of that meeting; or

(ii) the adjournment of that meeting.

(b) Subject to Article 11.9(a), a poll on a resolution at a meeting of Members may be demanded by:

(i) at least five Members present and entitled to vote on that resolution;

(ii) one or more Members present and who are together entitled to at least 5% of the votes that may be cast on that resolution on a poll; or

(iii) the Chairperson of that meeting.

(c) Subject to Article 11.19(a), a poll on a resolution at a meeting of Members may be demanded:

(i) before a vote on that resolution is taken; or

(ii) before or immediately after the results of the vote on that resolution on a show of hands are declared.

(d) A demand for a poll may be withdrawn.

(e) A poll demanded on a resolution at a meeting of Members other than for the election of a Chairperson of that meeting or the adjournment of that meeting must be taken in the manner and at the time and place the Chairperson directs.

(f) The result of a poll demanded on a resolution of a meeting of Members is a resolution of that meeting.

(g) A demand for a poll on a resolution of a meeting of Members does not prevent the continuance of that meeting or that meeting dealing with any other business.

11.20 Proxies and attorneys

(a) A Member, who is entitled to attend and cast a vote at a meeting of Members, may vote on a show of hands and on a poll:

(i) in person;

(ii) by proxy or, if the Member is entitled to cast two or more votes at the meeting, by not more than two proxies; or

(iii) by attorney or, if the Member is entitled to cast two or more votes at the meeting, by not more than two attorneys.

(b) A proxy or attorney of a Member need not be a Member.

(c) A Member may appoint a proxy or attorney for:

(i) all or any number of meetings of Members; or

(ii) a particular meeting of Members.

(d) A proxy can be used for all resolutions before a meeting of Members.

(e) An instrument appointing a proxy is valid if it is in the form as the Board may prescribe from time to time and it is signed by the Member making the appointment and contains:

(i) the name and address of that Member;

(ii) the name of the Company;

(iii) the name of the proxy or the name of the office of the proxy; and

(iv) the meetings of Members at which the proxy may be used.

(f) The Chairperson of a meeting of Members may determine that an instrument appointing a proxy is valid even if it contains only some of the information specified in Article11.20(d).

(g) A facsimile of a written appointment of a proxy or power of attorney is valid.

(h) An instrument appointing an attorney must be in a form as the Board may prescribe or the Chairperson of a meeting of Members may accept.

(i) Subject to the Corporations Act, the decision of the Chairperson of a meeting of Members as to the validity of an instrument appointing a proxy or attorney is final and conclusive.

(j) Unless otherwise provided in the Corporations Act or in the appointment, a proxy or attorney may:

(i) agree to a meeting of Members being called by shorter notice than is required by the Corporations Act or this Constitution;

(ii) agree to a resolution being either or both proposed and passed at a meeting of Members of which notice of less than the Prescribed Period is given;

(iii) speak on any resolution at a meeting of Members on which the proxy or attorney may vote;

(iv) vote at a meeting of Members (but only to the extent allowed by the appointment);

(v) demand or join in demanding a poll on any resolution at a meeting of Members on which the proxy or attorney may vote; and

(vi) attend and vote at any meeting of Members which is rescheduled or adjourned.

(k) If the name of the proxy or the name of the office of the proxy in a proxy form of a Member is not filled in, the proxy of that Member is:

(i) the person specified by the Company in the form of proxy in the case the Member does not choose; or

(ii) if no person is so specified, the Chairperson of that meeting.

(l) A Member may specify the manner in which a proxy or attorney is to vote on a particular resolution at a meeting of Members.  The proxy must vote in accordance with those directions.

(m) An appointment of proxy or attorney for a meeting of Members is effective only if the Company receives the appointment (and any authority under which the appointment was signed or a certified copy of the authority) not less than 48 hours before the time scheduled for commencement of that meeting (or any adjournment of that meeting).

(n) Unless the Company has received notice in writing of the matter not less than 48 hours before the time scheduled for the commencement of a meeting of Members, a vote cast at that meeting by a person appointed by a Member as a proxy or attorney is, subject to this Constitution, valid even if, before the person votes:

(i) the Member ceases to be a Member;

(ii) that Member revokes the appointment of that person;

or that Member revokes the authority under which the person was appointed by a third party.

1. 12.1 Number of Directors

(a) The Company will have a total of six Directors (or such other number as the Board may determine).

(b) The Company in general meeting may by ordinary resolution alter the maximum or minimum number of Directors provided that the minimum is not less than three.

(c) If the number of Directors is below the minimum fixed by this Constitution, the Directors must not act except:

(i) in emergencies;

(ii) for appointing one or more directors in order to make up a quorum for a meeting of Directors; or

(iii) to call and arrange to hold a meeting of Members.

12.2 Appointment of Directors

(a) The first Directors of the Company are the persons specified as directors in the application for registration of the Company under the Corporations Act

(b) Subject to Articles 12.1 and 12.5 and the Corporations Act, the Directors may appoint any person as Director.

(c) Subject to Article 12.5, the Company in general meeting may by ordinary resolution appoint any person as a Director.

12.3 Term of Office

(a) The first Directors of the Company will hold office for a three year term subject to clause 12.4.

(b) Subject to Article 12.3(d), all appointments to the Board will be for a two year term (or such other period as the Board may determine).

(c) A Director whose term of office, as referred to in Article 12.3(a), has expired may be subsequently reappointed by the Board in accordance with Article 12.2.

(d) If the office of a Director becomes vacant (for any reason) before the expiration of that Director's term of office then the Board will appoint a replacement Director to hold office for the balance of that term.

12.4 Rotation of Directors

(a) At the close of the first annual general meeting of the Company, one third of the Directors (rounded up to the nearest whole), appointed in accordance with clause 12.2, shall retire as Directors;

(b) At the close of each subsequent annual general meeting of the Company, one third of the Directors (rounded up to the nearest whole), or any such other number as determined by the Board from time to time, being those Directors who have served the longest time since the time of the most recent appointment, shall retire as Directors.

(c) All retiring Directors shall be eligible for reappointment in accordance with clause 12.2 of this Constitution;

12.5 Director must be a Member

A Director must be a Member of the Company.

12.6 Vacation of office

(a) A Director may resign from office by giving the Company 30 days' notice in writing of his or her intention to resign as a Director of the Company.

(b) A resignation under Article 12.6(a), is effective as a resignation under Article 10.1(a).

(c) The office of a Director is vacated if:

(i) that Director ceases to be a Member;

(ii) that Director becomes of unsound mind or a person whose property is liable to be dealt with under a law about mental health;

(iii) that Director is absent without the consent of the Board from three consecutive meetings of the Board and the Members resolve that his or her office be vacated;

(iv) that Director resigns pursuant to Article 10.1(a);

(v) that Director is removed under this Constitution;

(vi) that Director becomes an insolvent under administration; or

(vii) the Corporations Act so provides.

12.7 Alternate Directors

(a) A Director may appoint a person as an Alternate Director of that Director for any period.

(b) An Alternate Director must be a Member. 

(c) The appointing Director may terminate the appointment of his or her Alternate Director at any time.

(d) A notice of appointment, or termination of appointment, of an Alternate Director is effective only if:

(i) the notice is in writing;

(ii) the notice is signed by the Director who appointed that Alternate Director; and

(iii) the Company is given a copy of the notice.

(e) If the Director who appointed an Alternate Director is not present at a meeting of Directors, that Alternate Director may, subject to this Constitution and the Corporations Act:

(i) attend, count in the quorum of, speak at, and vote at that meeting in place of that appointing Director; and

(ii) exercise any other powers (except the power under Article 12.7(a)) that the appointing Director may exercise.

(f) An Alternate Director cannot exercise any powers of his or her appointing Director if that appointing Director ceases to be a Director.

(g) A person does not cease to be a Director under Article 12.7(f) if that person retires as a Director at a meeting of Members and is re‑elected as a Director at that meeting.

(h) Subject to the Article 12.8(c), the Company is not required to pay any remuneration to an Alternate Director.

(i) An Alternate Director is an Officer of the Company and not an agent of his or her appointing Director.

12.8 Payments to Directors

(a) The provisions of section 202A of the Corporations Act which apply as a replaceable rule are displaced.

(b) The Company will not pay any amount to a Director except as provided in Article 12.8(c) and Article 12.10(b).

(c) The Company may pay all reasonable travelling, accommodation and other expenses (that are supported by proof of expenditure) incurred by a Director in consequence of his or her attendance at meetings of the Board and otherwise in the execution of his or her duties as a Director as approved by the Board if such Director requests.

12.9 When a Director may vote

Subject to compliance with Article 12.12, a Director who has an interest in a matter that is being considered at a meeting of the Board may be present and vote in accordance with the Corporations Act.

12.10 Director may act in professional capacity

Subject to the Corporations Act:

(a) any Director may act by himself or herself or the Director's firm may act in a professional capacity for the Company or any other Corporation in which the Company is a shareholder or is otherwise interested; and

(b) that Director and that Director's firm will be entitled to remuneration, as approved by the Board, for professional services as if that Director were not a Director,

but nothing in this Article 12.10 authorises a Director or that Director's firm to act as an auditor of the Company.

12.11 Director may affix seal notwithstanding interest

Notwithstanding that a Director is interested in a contract or arrangement, that Director may be appointed as the Director to sign on behalf of the Company or in whose presence the seal of the Company is to be affixed to any instrument to which the interest relates.

12.12 Disclosure of interest

A Director who is in any way, whether directly or indirectly, interested in a matter in which the Company has an interest will declare the nature of the interest at a meeting of the Board as soon as practicable after the relevant facts have come to the Director's knowledge.

12.13 Managing Director

(a) The Board may appoint one or more of the Directors as a managing director, for any period and on any terms (including as to remuneration) the Board resolves.

(b) Subject to any agreement between the Company and a managing director, the Board may remove or dismiss a managing director at any time, with or without cause.

(c) The Directors may delegate any of their powers (including the power to delegate) to a managing director

(d) The Directors may revoke or vary:

(i) the appointment of a managing director; or

(ii) any power delegated to a managing director.

(e) A managing director must exercise the powers delegated to him or her in accordance with any directions of the Directors.

(f) The exercise of a power by a managing director is as effective as if the Directors exercised the power.

(g) A person ceases to be a managing director if the person ceases to be a Director.

12.14 Secretary

(a) The first Secretary is the person specified in the application for registration of the Company as company secretary. The Company must have at least one Secretary.

(b) The Directors may appoint one or more Secretaries, for any period and on any terms (including as to remuneration) the Directors resolve.

(c) Subject to any agreement between the Company and a Secretary, the Board may remove or dismiss a Secretary at any time, with or without cause.

(d) The Board may revoke or vary the appointment of a Secretary.

(e) A Secretary need not be a Member. 

13.1 Indemnity against liabilities

To the extent permitted by law, the Company indemnifies every person who is, or has been, a Director or Secretary or Officer of the Company against a liability incurred by that person, in his or her capacity as such a Director, Secretary or Officer, to another person (other than the Company or a related body corporate of the Company) provided that the liability does not arise out of conduct involving a lack of good faith.

13.2 Indemnity for costs and expenses

To the extent permitted by law, the Company:

(a) indemnifies every person who is, or has been, a Director or Secretary;

against a liability for costs and expenses incurred by that person:

(b) in defending any Proceedings in which judgment is given in that person's favour, or in which that person is acquitted; or

(c) in connection with an application in relation to any Proceedings in which the Court grants relief to that person under the Corporations Act.

14.1 General powers

(a) The Company may exercise in any manner permitted by the Corporations Act any power which a public company limited by guarantee may exercise under the Corporations Act.

(b) The business of the Company is managed by or under the direction of the Board.

(c) The Board may exercise all the powers of the Company except any powers that the Corporations Act or this Constitution requires the Company to exercise in general meeting.

14.2 Execution of documents

(a) If the Company has a common seal, the Company may execute a document if that seal is fixed to the document and the fixing of that seal is witnessed by:

(i) two Directors;

(ii) a Director and a Secretary; or

(iii) a Director and another person appointed by the Directors for that purpose.

(b) The Company may execute a document without a common seal if the document is signed by:

(i) two Directors;

(ii) a Director and a Secretary; or

(iii) a Director and another person appointed by the Directors for that purpose.

(c) 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 Article 14.2(a) or 14.2(b).

(d) The Board may resolve, generally or in a particular case, that any signature on certificates for securities of the Company may be affixed by mechanical or other means.

(e) Negotiable instruments may be signed, drawn, accepted, endorsed or otherwise executed by or on behalf of the Company in the manner and by the persons as the Board resolves.

14.3 Committees and delegates

(a) The Board may delegate any of their powers (including this power to delegate) to a committee of Directors, a Director, an employee of the Company or any other person.

(b) The Board may revoke or vary any power delegated under Article 14.3(a).

(c) A committee or delegate must exercise the powers delegated in accordance with any directions of the Board.

(d) The exercise of a power by the committee or delegate is as effective as if the Board exercised the power.

(e) Article 14 applies with the necessary changes to meetings of a committee of Directors.

14.4 Attorney or agent

(a) The Board may appoint any person to be attorney or agent of the Company for any purpose, for any period and on any terms (including as to remuneration) the Board resolves.

(b) The Board may delegate any of their powers (including the power to delegate) to an attorney or agent.

(c) The Board may revoke or vary:

(i) an appointment under Article 14.4(a); or

(ii) any power delegated to an attorney or agent.

1. 15.1 Meetings of Directors

Subject to the Corporations Act, the Board may hold a meeting, adjourn and otherwise regulate its meetings as it thinks fit.

15.2 Quorum for meetings of Directors

(a) The provisions of section 248F of the Corporations Act which apply as a replaceable rule are displaced.

(b) The Board may determine the quorum necessary for the transaction of business.  Until otherwise determined, the quorum will be 50% of Directors or two Directors (whichever is greater).

(c) A meeting of the Board during which a quorum is present is competent to exercise all or any of the authorities, powers and discretions under this Constitution for the time being vested in or exercisable by the Board generally.

(d) The Board does not need to be present in the same place to satisfy the quorum requirement.

15.3 Calling meetings of Directors

A meeting of the Board may be called in accordance with the Corporations Act.

15.4 Notice of meetings of the Directors

(a) Notice of every meeting of the Board must be given to each Director in accordance with Article 21.2.

(b) If notice of a meeting of the Board cannot be given to a particular Director in accordance with Article 21.2, written notice served on:

(i) the usual residential address of that person;

(ii) the alternative address of that person notified under the Corporations Act; or

(iii) such other address (including an electronic address) provided to the Company by that person for the purpose of serving notice on that person,

will constitute notice to that person of that meeting for the purposes of this Article 15.4.

15.5 Meetings by using Technology

(a) Without limiting the discretion of the Board to regulate its meetings under Article 15.1, the Board may, if it thinks fit, confer by any Technology.

(b) Notwithstanding that the Board is not present together in one place at the time of the conference referred to in Article 15.5(a), a resolution passed by the conference will be deemed to have been passed at a meeting of the Board held on the day on which and at the time at which the conference was held.

(c) The provisions of this Constitution relating to proceedings of the Board apply to the conference referred to in Article 15.5(a) to the extent that they are capable of applying, and with the necessary changes.

(d) A Director present at the commencement of the conference referred to in Article 15.5(a) will be conclusively presumed to have been present and, subject to other provisions of this Constitution, to have formed part of the quorum throughout the conference.

(e) Any minutes of a conference of the type referred to in Article 15.5(a) purporting to be signed by the Chairperson of that conference or by the Chairperson of the next succeeding meeting of the Board will be sufficient evidence of the observance of all necessary formalities regarding the convening and conduct of the conference.

(f) When, by the operation of Article 15.5(b), a resolution is deemed to have been passed at a meeting of the Board, that meeting will be deemed to have been held at such place as is determined by the Chairperson of the relevant conference, provided that at least one of the Directors who took part in the conference was at that place for the duration of the conference.

15.6 Votes at meetings of Directors

(a) Motions and resolutions arising at any meeting of the Board will be decided by a majority of votes and each Director has one vote.

(b) In case of an equality of votes the Chairperson of a meeting of the Board will have a casting vote in addition to any vote he or she has in his or her capacity as a Director.

15.6 Chairperson of Directors

(a) The provisions of section 248E of the Corporations Act which apply as a replaceable rule are displaced.

(b) The Board shall elect one of the Directors to the position of Chairperson who shall act as chairperson at meetings of the Board and at meetings of Members.

(c) If at any meeting of the Board the Chairperson is not present within 15 minutes of the time appointed for holding the meeting, a majority of those Directors present may choose another Director as Chairperson of that meeting of the Board or part of that meeting (as the case may be).

(d) In the case of an equality of votes on any resolution of the Board, the Chairperson of the meeting has a casting vote in addition to any votes to which the Chairperson is entitled in his or her capacity as a Director.

15.8 Defects in appointment or qualifications of Director

All acts:

(a) done at any meeting of the Board; or

(b) any meeting of a committee of the Board; or

(c) by any person acting as a Director,

will be as valid as if every such person or committee had been duly appointed and every Director was qualified and entitled to vote, notwithstanding that it is afterwards discovered that:

(d) there was some defect in the appointment of a Director or of the committee or of the person acting; or

(e) any Director was disqualified or not entitled to vote.

16.1 Minutes

The Company must keep minute books in which it records:

(a) proceedings and resolutions of meetings of the Members;

(b) proceedings and resolutions of Directors' meetings (including meetings of a committee of Directors);

(c) resolutions passed by Members without a meeting; and

(d) resolutions passed by Directors without a meeting.

16.2 Financial Records

The Company must keep written financial records that:

(a) correctly record and explain its transactions and financial position and performance; and

(b) would enable true and fair financial statements to be prepared and audited.

17.1 Company to keep accounts

The Company will keep all accounting records of the business of the Company as it is required to keep by the Corporations Act.

18.1 Appointment

(a) Within one month after the day on which the Company is incorporated, the Board must appoint, unless the Company at general meeting has already appointed, a person or persons, a firm or firms, or a person or persons and a firm or firms, as auditor or auditors of the Company.

(b) The Company must:

(i) at its first annual general meeting appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, as auditor or auditors of the Company; and

(ii) at each subsequent annual general meeting, if there is a vacancy in the office of the auditor of the Company, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, to fill the vacancy.

18.2 Removal

An auditor of the Company may be removed by resolution of the Company at a general meeting as provided in accordance with the Corporations Act, but not otherwise.

18.3 Fees

The reasonable fees and expenses of an auditor of the Company are payable by the Company.

19.1 Officers of Company not to disclose information

(a) Every Director, manager, Secretary, auditor, trustee, member of a committee, agent, accountant or other Officer is bound to observe confidentiality with respect to all transactions of the Company.

(b) If required by the Board, every such person will, before commencing that person's duties or employment or at any time afterwards, sign and make a declaration in a book to be kept for that purpose that they will not reveal or make known any of the matters, affairs or concerns which may come to their knowledge as Director, manager, Secretary, auditor, trustee, member of a committee, agent, accountant or other Officer and whether relating to transactions of the Company with its customers or the state of the account of any individual or to anything else, to any person or persons except:

(i) in the course and in the performance of their duties; or

(ii) under compulsion or obligation of law; or

(iii) when officially required so to do by the Board or by the auditors for the time being.

If on a winding up of the Company, there remains a surplus, the liquidator must give or transfer the property comprising that surplus in accordance with clause 15 of the Trust Deed.

21.1 Notice to Members

(a) The Company may give notice to a Member:

(i) in person;

(ii) by sending it by post to the address of the Member in the Register or the alternative address (if any) nominated by that Member; or

(iii) by sending it to the fax number or electronic address (if any) nominated by that Member.

(b) If the address of a Member in the Register is not within Australia, the Company must send all documents to that Member by air-mail, air courier or by fax.

(c) Any notice required or allowed to be given by the Company to one or more Members by advertisement is, unless otherwise stipulated, sufficiently advertised if advertised once in a daily newspaper circulating in the states and territories of Australia.

21.2 Notice to Directors

The Company may give notice to a Director or Alternate Director:

(a) in person;

(b) by sending it by post to the usual residential address of that person or the alternative address (if any) nominated by that person;

(c) by sending it to the fax number or electronic address (if any) nominated by that person; or

(d) by any other means agreed between the Company and that person.

21.3 Notice to the Company

A person may give notice to the Company:

(a) by leaving it at the registered office of the Company;

(b) by sending it by post to the registered office of the Company;

(c) by sending it to the fax number at the registered office of the Company;

(d) by sending it to the electronic address (if any) nominated by the Company for that purpose; or

(e) by any other means permitted by the Corporations Act.

21.4 Time of service

(a) A notice sent by post to an address within Australia is taken to be given:

(i) in the case of a notice of meeting, one Business Day after it is posted; or

(ii) in any other case, at the time at which the notice would be delivered in the ordinary course of post.

(b) A notice sent by post or air‑mail to an address outside Australia is taken to be given: in the case of a notice of meeting, 5 Business Days after it is posted; or

(i) in any other case, at the time at which the notice would be delivered in the ordinary course of post.

(c) A notice sent by air courier to a place outside Australia is taken to be given 5 Business Days after delivery to the air courier.

(d) A notice sent by fax is taken to be given on the Business Day it is sent, provided that the sender's transmission report shows that the whole notice was sent to the correct fax number.

(e) The giving of a notice by post, air‑mail or air courier is sufficiently proved by evidence that the notice:

(i) was addressed to the correct address of the recipient; and

(ii) was placed in the post or delivered to the air courier.

(f) A certificate by a Director or Secretary of a matter referred to in Article 21.4(e) is sufficient evidence of the matter, unless it is proved to the contrary.

 

September 2001