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VisAbility Limited(ACN 604 293 209)(Company)
April 2020
Phone: (61-8) 6211 5000
Fax: (61-8) 6211 5055
ABN: 83 662 050 668
Postal Address: PO Box Z5433, St Georges Tce, Perth WA 6831
Address: Level 24, St Martins Tower, 44 St Georges Tce, Perth WA 6000
Contents1. Definitions.....................................................................1
2. Interpretation................................................................2
3. Objects.........................................................................3
4. Powers..........................................................................4
4.1. Specific powers................................................................................4
4.2. Limitation of power...........................................................................4
5. Income and property......................................................4
5.1. Sole purpose....................................................................................4
5.2. Certain payments allowed................................................................4
6. Membership..................................................................5
6.1. Eligibility of Members.......................................................................5
6.2. Admission of Members....................................................................5
6.3. Member rights..................................................................................5
6.4. Member responsibilities...................................................................5
6.5. General............................................................................................5
6.6. Liability of Members.........................................................................6
7. Cessation of Membership...............................................6
7.1. Cessation.........................................................................................6
7.2. Resignation......................................................................................6
7.3. Forfeiture of Rights..........................................................................6
8. Grievances and discipline of Members............................7
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8.1. Jurisdiction.......................................................................................7
8.2. Policies............................................................................................7
9. Fees and subscriptions..................................................8
9.1. Membership fee...............................................................................8
9.2. Non-payment of fees........................................................................8
9.3. Deferral or reduction of subscriptions..............................................8
10. General meetings..........................................................9
10.1. Annual General Meeting..................................................................9
10.2. Power to convene General Meetings...............................................9
10.3. Notice of General Meetings.............................................................9
10.4. Cancellation or postponement of General Meeting........................11
10.5. Written notice of cancellation or postponement of General Meeting11
10.6. Contents of notice postponing General Meeting............................11
10.7. Number of clear days for postponement of General Meeting........12
10.8. Business at postponed General Meeting.......................................12
10.9. Proxy or attorney at postponed General Meeting..........................12
10.10. Non-receipt of notice......................................................................12
10.11. Right to appoint proxy....................................................................12
10.12. Form of proxy.................................................................................13
10.13. Attorney of Member.......................................................................13
10.14. Proxy or attorney documents.........................................................13
10.15. Authority given by appointment......................................................13
11. Proceedings at General Meetings.................................14
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11.1. Requirement for a quorum.............................................................14
11.2. Number for a quorum.....................................................................15
11.3. Quorum and time...........................................................................15
11.4. Adjourned meeting.........................................................................15
11.5. Chair to preside over General Meetings........................................15
11.6. Conduct of General Meetings........................................................15
11.7. Adjournment of General Meeting...................................................16
11.8. Notice of adjourned meeting..........................................................16
11.9. Questions decided by majority.......................................................16
11.10. Equality of votes.............................................................................16
11.11. Declaration of results.....................................................................16
11.12. Poll.................................................................................................17
11.13. Objection to voting qualification.....................................................17
11.14. Chair to determine any poll dispute...............................................17
12. Votes of Members........................................................18
12.1. Votes of Members..........................................................................18
12.2. Resolutions not in General Meeting...............................................18
13. Directors.....................................................................18
13.1. Number of Directors.......................................................................18
13.2. Directors’ qualifications..................................................................19
13.3. First Directors.................................................................................19
13.4. Nomination for election..................................................................19
13.5. Term of office.................................................................................20
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13.6. Maximum term of office for Directors.............................................20
13.7. Casual vacancy..............................................................................20
13.8. Remuneration of Directors.............................................................20
13.9. Removal of Director.......................................................................21
13.10. Vacation of office...........................................................................21
14. Powers and duties of Directors.....................................22
14.1. Directors to manage Company......................................................22
14.2. Specific powers of Directors..........................................................22
14.3. Appointment of attorney.................................................................23
14.4. Minutes..........................................................................................23
15. Company seal..............................................................23
15.1. Common seal.................................................................................23
15.2. Use of seals...................................................................................24
15.3. Fixing seals to documents.............................................................24
16. Proceedings of Directors..............................................24
16.1. Directors’ meetings........................................................................24
16.2. Questions decided by majority.......................................................24
16.3. Chair’s casting vote........................................................................24
16.4. Quorum..........................................................................................25
16.5. Effect of vacancy............................................................................25
16.6. Convening meetings......................................................................25
16.7. Election of Chair.............................................................................25
16.8. Circulating resolutions....................................................................26
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16.9. Validity of acts of Directors............................................................26
16.10. Directors’ interests.........................................................................26
16.11. Director’s resolutions.....................................................................27
17. Committees.................................................................27
17.1. Committees....................................................................................27
17.2. Committee meetings......................................................................28
18. Chief executive officer..................................................28
18.1. Appointment of CEO......................................................................28
18.2. Powers, duties and authorities of CEO..........................................28
18.3. Delegation......................................................................................28
19. Accounts.....................................................................29
19.1. Accounting records........................................................................29
19.2. Auditor...........................................................................................29
20. Service of documents...................................................29
20.1. Notices...........................................................................................29
20.2. Post................................................................................................30
20.3. Facsimile or electronic transmission..............................................30
21. Indemnity....................................................................30
22. Dissolution and winding up..........................................31
22.1. Contributions of Members on winding up.......................................31
22.2. Excess property on winding-up......................................................31
22.3. Tax.................................................................................................32
23. Separate gift fund........................................................32
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24. By-laws and regulations...............................................33
25. Adoption and amendments of Constitution....................33
26. Inconsistency with Corporations Act.............................34
Schedule 1..........................................................................35
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Corporations ActA Company Limited by GuaranteeConstitution ofVisAbility Limited(ACN 604 293 209)
1. DefinitionsIn this Constitution, unless the contrary intention appears:
(a) “AGM” means the annual general meeting of the Company required to be held by the Company in each calendar year under section 250N(2) of the Corporations Act.
(b) “Auditor” means the registered company auditor appointed by the Company from time to time for auditing its accounts.
(c) “Board” means the board of Directors and includes any committee of that board.
(d) “CEO” means a person appointed as chief executive officer of the Company by the Directors.
(e) “Chair” means the person elected as the Chair of the Company in accordance with clause 16.7.
(f) “Committee” means a committee established by the Directors under clause 17.
(g) “Company” means Visability Limited (ACN 604 293 209).
(h) “Constitution” means this Constitution as amended from time to time, and a reference to a particular clause is a reference to a clause of this Constitution.
(i) “Corporations Act” means the Corporations Act 2001 (Cth).
(j) “Director” means a director for the time being of the Company.
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(k) “General Meeting” means a general meeting of Members and includes the AGM.
(l) “Member” means a person for the time being entered in the Register as a member of the Company.
(m) “Objects” means the objects of the Company set out in clause 3.
(n) “Policy” means a policy made under clause 8.2.
(o) “Register” means the register of members of the Company to be kept by the Company.
(p) “Registered Office” means the registered office for the time being of the Company.
(q) “Secretary” means the secretary for the time being of the Company.
(r) “Schedule” means any schedule to this Constitution.
(s) ”Special Resolution” means a resolution passed by at least 75% of all Members present in person or by proxy and entitled to vote, voting in favour of the resolution.
2. InterpretationIn this Constitution, unless the contrary intention appears:
(a) words importing any gender include all others genders;
(i) a reference to person includes a firm, a body corporate, an unincorporated association or an authority;
(ii) words importing the singular includes the plural and vice versa;
(iii) a reference to a body including an institute, association or authority, whether statutory or not:
(iv)which ceases to exist; or
(v) whose powers or functions are transferred to another body,
(vi) is a reference to the body which replaces it or substantially succeeds to its powers or functions;
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(vii) “include” and “including” are not words of limitation; and
(viii) a reference to a statute or code or the Corporations Act (or to a provision of same) means the statute, code or the Corporations Act (or provisions of same) as modified or amended and in operation for the time being, or any statute, code or provision enacted (whether by the State or Commonwealth of Australia) in its place and includes any regulation or rule for the time being in force issued under that statute, code or the Corporations Act.
(b) Unless the contrary intention appears in this Constitution, an expression has, in a provision of this Constitution that deals with a matter dealt with by a particular provision of the Corporations Act, the same meaning as in that provision of the Corporations Act.
(c) Headings and words in bold are inserted for convenience only and do not affect the interpretation of this Constitution.
(d) The Replaceable Rules contained in the Corporations Act do not apply to the Company.
3. ObjectsThe Objects of the Company are to maximise the quality of life of Australians who are blind or vision impaired, by:
(a) establishing, financing and maintaining facilities and services to enable people who are blind and vision impaired to maximise their quality of life as members of the general community;
(b) providing services which develop skills, promote well being, independence and community participation, and which facilitate access to services and information for people who are blind or vision impaired;
(c) conducting community education and advocacy programs in consultation with Members and clients of the Company and with or independently of government and other organisations designed to create an environment free of social, attitudinal, institutional and physical barriers for people with vision impairments; and
(d) promoting a policy of affirmative action for people who are blind or vision impaired.
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4. Powers
4.1. Specific powersSolely for the purpose of furthering the Objects, the Company, in addition to any powers it has under the Corporations Act, has the legal capacity and powers of a company limited by guarantee as set out in section 124 of the Corporations Act.
4.2. Limitation of power(a) The Company does not have the power to issue shares.
(b) The Company is a Company limited by guarantee.
5. Income and property
5.1. Sole purpose(a) Subject to clause 5.2, the income and property of the Company from wherever
derived must be applied solely towards promoting the Objects of the Company.
(b) The Company must not distribute, pay or transfer to any Member directly or indirectly by way of dividend, bonus or otherwise any of the property or income of the Company.
5.2. Certain payments allowedClause 5.1 does not prevent payment of:
(a) reasonable remuneration to any officer or employee of the Company in return for services rendered to the Company;
(b) reasonable remuneration to any Member for services rendered or goods supplied in the ordinary course of business to the Company;
(c) reasonable interest, at a rate not exceeding current bank overdraft rates of interest, for money lent by a Member to the Company; and
(d) reasonable rent for premises leased by a Member to the Company.
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6. Membership
6.1. Eligibility of MembersEach Director of the Company is eligible to be a Member for the period they are a Director of the Company.
6.2. Admission of MembersA person will become a Member, and the Directors will direct the Secretary to record their name in the Register, upon the person being appointed as a Director.
6.3. Member rightsAll Members are entitled to access (subject to the payment of the then prevailing fee (if any)) to the services offered by the Company and referred to in clause (a) of this Constitution. Members acknowledge that services will be provided by the Company to persons who are not Members.
6.4. Member responsibilitiesEach Member will:
(a) do all things necessary to enable the Objects to be achieved;
(b) effectively promulgate and enforce the Constitution and Policies of the Company;
(c) at all times act for and on behalf of the interest of the Company and Members;
(d) be bound by the Constitution and the Policies;
(e) act in good faith and loyalty to maintain and enhance the Company, its standards, quality and reputation for collective and mutual benefit of the Members; and
(f) at all times operate with and promote mutual trust and confidence between the Company and the Members, promoting the economic success, strength and stability of each other and work co-operatively with each other in the pursuit of the Objects.
6.5. General(a) The Company must keep a register of all Members in accordance with the
Corporations Act.
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(b) No Member whose membership ceases has any claim against the Company or the Directors for damage or otherwise arising from cessation or termination of membership.
(c) Membership is personal to each Member. No Member shall, or purport to, assign the rights comprising or associated with membership to any other person and any attempt to do so shall be void.
6.6. Liability of MembersMembers have no liability in that capacity except as set out in clause 22.
7. Cessation of Membership
7.1. Cessation A person ceases to be a Member on:
(a) resignation;
(b) death;
(c) the termination of their membership according to this Constitution or the Policies;
(d) and without limiting the foregoing:
(i) that Member no longer meeting the requirements for membership according to clause 6; and
(ii) that Member ceasing to be a Director in accordance with clause 13.9 or 13.10.
7.2. Resignation For the purposes of clause (a), a Member may resign as a member of the Company by giving 14 days’ written notice to the Directors.
7.3. Forfeiture of Rights A Member who or which ceases to be a Member shall forfeit all right in and claim upon the Company or the Directors for damages or otherwise, or claim upon its property including its intellectual property rights.
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8. Grievances and discipline of Members
8.1. Jurisdiction All Members will be subject to, and submit unreservedly to, the jurisdiction, procedures, penalties and appeal mechanisms of the Company whether under the Policies or under this Constitution.
8.2. Policies (a) The Directors may make a Policy or Policies:
(i) for the hearing and determination of:
(A) grievances by any Member who feels aggrieved by a decision or action of the Company; and
(B) disputes between Members;
(ii) for the discipline of Members; and
(iii) for the termination of Members.
(b) The Directors in their sole discretion may refer an allegation (which in the opinion of the Directors is not vexatious, trifling or frivolous) by a complainant (including a Director or a Member) that a Member has:
(i) breached, failed, refused or neglected to comply with a provision of this Constitution, the Policies or any other resolution or determination of the Directors or any duly authorised Committee; or
(ii) acted in a manner unbecoming of a Member or prejudicial to the Objects and interests of the Company; or
(iii) prejudiced the Company or brought the Company into disrepute,
for investigation or determination either under the procedures set down in the Policies or by such other procedure and/or persons as the Directors consider appropriate.
(c) During investigatory or disciplinary proceedings under this clause 8, a respondent may not participate in activities of the Company, pending the determination of such proceedings (including any available appeal) unless the
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Directors decide continued participation is appropriate having regard to the matter at hand.
9. Fees and subscriptions
9.1. Membership fee (a) The Directors must determine from time to time:
(i) the amount (if any) payable by an applicant for membership;
(ii) the amount of the annual subscription fee (if any) payable by each Member, or any category of Members;
(iii) any other amount to be paid by each Member, whether of a recurrent or any other nature; and
(iv) the payment method and the due date for payment.
(b) Each Member must pay to the Company the amounts determined under this clause 9 in accordance with clause (a)(iv).
9.2. Non-payment of fees The right of a Member to attend and vote at a General Meeting is suspended while the payment of any subscription or other amount determined under clause 9 is in arrears greater than 90 days.
9.3. Deferral or reduction of subscriptions (a) The Directors may defer the obligations of a Member to pay a subscription or
other amount, or reduce (including to zero) the subscription or other amount payable by a Member, if the Directors are satisfied that:
(i) there are reasonable grounds for doing so;
(ii) the Company will not be materially disadvantaged as a result; and
(iii) the Member agrees to pay the deferred or (if greater than zero) the reduced subscription or other amount within a time fixed by the Directors.
(b) If the Directors defer or reduce a subscription or other amount payable by a Member under this clause 9.3, that Member will retain their rights to attend
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and vote (if entitled) at a General Meeting, unless otherwise specified by the Directors.
10. General meetings
10.1. Annual General Meeting(a) The Company must hold an AGM at least once in each calendar year and
within five (5) months after the end of the financial year.
(b) An AGM of the Company shall be held at a date and venue to be determined by the Directors.
10.2. Power to convene General Meetings(a) Any three (3) Directors may whenever they think fit convene a General
Meeting.
(b) General Meetings shall also be convened upon the requisition of not less than five percent (5%) of the Members, or as otherwise provided in the Corporations Act.
(c) The request must:
(i) be in writing;
(ii) state any resolution to be proposed at the General Meeting;
(iii) be signed by the Members making the request; and
(iv)be given to the Company.
(d) Separate copies of a document setting out the request may be used for signing by Members if the wording of the request is identical in each copy.
(e) The Secretary must call the General Meeting within fourteen (14) days after the request is given to the Company. The General Meeting must be held not later than two (2) months after the request is given to the Company.
10.3. Notice of General Meetings(a) Members must be given at least:
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(i) twenty eight (28) days’ notice of a General Meeting at which any election of Directors or other officers is to be held; and
(ii) twenty one (21) days’ notice of any other General Meeting.
(b) The Company may call on shorter notice in the case of:
(i) an AGM, if all the Members agree beforehand; and
(ii) any other General Meeting, if Members with at least ninety five percent (95%) of the votes that may be cast at the meeting agree beforehand.
(c) At least twenty one (21) days’ notice must be given of a General Meeting at which a resolution will be moved to:
(i) remove an Auditor;
(ii) remove a Director; or
(iii) appoint a Director in place of a Director removed under clause (a)(ii).
(d) Notice of every General Meeting must be given to every Member except those Members who have not supplied to the Company an address for the giving of notices to them.
(e) A notice of a General Meeting must:
(i) set out the place, date and time for the General Meeting (and, if the General Meeting is to be held in two (2) or more places, the technology that will be used to facilitate this);
(ii) state the general nature of the business of the General Meeting;
(iii) if a Special Resolution is to be proposed at the General Meeting, set out an intention to propose the Special Resolution and state the resolution; and
(iv) if a Member is entitled to appoint a proxy, contain a statement setting out the following information:
(A) that the Member has right to appoint a proxy;
(B) whether or not the proxy needs to be a Member;
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(C) that a Member who is entitled to cast two (2) or more votes may appoint two (2) proxies and may specify the proportion or number of votes each proxy is appointed to exercise.
(f) No business other than that stated in the notice of meeting may be transacted at a General Meeting.
(g) The Company may serve the notice of a General Meeting on a Member in any of the ways provided in these rules for the service of notices.
10.4. Cancellation or postponement of General Meeting Where a General Meeting (including an AGM) is convened by the Directors they may, if they think fit, cancel the meeting or postpone the meeting to a date and time they determine. This clause does not apply to a General Meeting convened by:
(a) Members according to the Corporations Act;
(b) the Directors at the request of Members; or
(c) a court.
10.5. Written notice of cancellation or postponement of General Meeting
Notice of the cancellation or postponement of a General Meeting must state the reasons for doing so and be given to:
(a) each Member entitled to attend the General Meeting; and
(b) each other person entitled to notice of a General Meeting under the Corporations Act.
10.6. Contents of notice postponing General Meeting A notice postponing a General Meeting must specify:
(a) the new date and time for the meeting;
(b) the place where the meeting is to be held, which may be either the same as or different to the place specified in the notice originally convening the meeting; and
(c) if the meeting is to be held in two (2) or more places, the technology that will be used to hold the meeting in that manner.
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10.7. Number of clear days for postponement of General Meeting
The number of clear days from the giving of a notice postponing a General Meeting to the date specified in that notice for the postponed meeting must not be less than fourteen (14) days.
10.8. Business at postponed General Meeting The only business that may be transacted at a postponed General Meeting is the business specified in the notice originally convening the meeting.
10.9. Proxy or attorney at postponed General Meeting Where:
(a) by the terms of an instrument appointing a proxy or attorney that appointed person is authorised to attend and vote at a General Meeting on behalf of the appointing Member to be held on a specified date or at a General Meeting or General Meetings to be held on or before a specified date; and
(b) the date for the meeting is postponed to a date later than the date specified in the instrument,
then that later date is substituted for the date specified in the instrument appointing that appointed person, unless the appointing Member notifies the Company in writing to the contrary at least forty eight (48) hours before the time at which the postponed meeting is to be held.
10.10. Non-receipt of notice The non-receipt of a notice convening, cancelling or postponing a General Meeting by, or the accidental omission to give a notice of that kind to, a person entitled to receive it, does not invalidate any resolution passed at the General Meeting or at a postponed meeting or the cancellation or postponement of the meeting.
10.11. Right to appoint proxy (a) A Member entitled to attend a General Meeting of the Company is entitled to
appoint a person as their proxy to attend the meeting in their place in accordance with the Corporations Act.
(b) A proxy may be revoked by the appointing Member at any time by notice in writing to the Company.
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10.12. Form of proxy The instrument appointing a proxy may be in form determined by the Directors from time to time provided it complies with the requirements under the Corporations Act.
10.13. Attorney of Member A Member may appoint an attorney to act on the Member’s behalf at all or any meetings of the Company.
10.14. Proxy or attorney documents (a) A proxy or Attorney may vote at a General Meeting or adjourned or postponed
meeting (as the case may be) only if the instrument appointing the proxy or attorney, and the original or a certified copy of the power of attorney or other authority (if any) under which the instrument is signed, are received by the Company:
(i) at the Registered Office, the facsimile number at the Registered Office or at such other place, facsimile number or electronic address specified for that purpose in the notice of meeting; and
(ii) at least forty eight (48) hours before the scheduled commencement time for the meeting or adjourned or postponed meeting (as the case may be) at which the person named in the instrument proposes to vote. The scheduled commencement time is as specified in the notice of meeting.
(b) An undated proxy is taken to be dated on the day that it is received by the Company.
10.15. Authority given by appointment (a) Unless the terms of the appointment specify to the contrary, an appointment
by a Member confers authority on a proxy or attorney:
(i) to agree to a General Meeting being convened by shorter notice than is required by the Corporations Act or by this Constitution;
(ii) to speak to any proposed resolution; and
(iii) to demand or join in demanding a poll on any resolution.
(b) Unless the terms of the appointment specify to the contrary, even if the instrument of appointment refers to specific resolutions and directs the proxy
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or attorney on how to vote on those resolutions, the appointment is taken to confer authority:
(i) to vote on any amendment moved to the proposed resolutions and on any motion that the proposed resolutions not be put or any similar motion;
(ii) to vote on any procedural motion; and
(iii) to act generally at the meeting.
(c) Unless the terms of the appointment specify to the contrary, if the instrument of appointment refers to a specific meeting to be held at a specified time or venue and the meeting is postponed or adjourned or changed to another venue, then the appointment confers authority to attend and vote:
(i) at the postponed or adjourned meeting; or
(ii) at the new venue.
(d) An appointment of a proxy may be a standing proxy — that is, the appointment under the proxy remains valid until it is revoked by the Member that made the appointment.
(e) The instrument appointing a proxy may provide for the Chair to act as proxy in the absence of any other appointment or if the person or persons nominated fails or fail to attend the meeting.
(f) The instrument appointing a proxy may direct the manner in which the proxy is to vote in respect of a particular resolution.
(g) If a proxy is appointed to vote on a particular resolution by more than one (1) Member and the instruments appointing the proxy direct the proxy to vote on the resolution in different ways, then the proxy must not vote on a show of hands taken on the resolution.
11. Proceedings at General Meetings
11.1. Requirement for a quorumNo business shall be transacted at any General Meeting unless a quorum of Members is present at the time when the meeting proceeds to business.
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11.2. Number for a quorum(a) The number of Members who must be present and eligible to vote for a
quorum to exist at a General Meeting is a majority of the total number of Members or such greater number as may be fixed by the Members’ in clause 11.2(a) of the Constitution.
(b) For the purpose of this clause “Member” includes a person attending as a proxy of the Member.
11.3. Quorum and timeIf within half an hour from the time appointed for the meeting a quorum is not present the meeting, if convened upon the requisition of Members is dissolved and in any other case stands adjourned to such other day, time and place as the Chair determines.
11.4. Adjourned meetingIf at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting the Members present (being not less than three (3)) shall constitute a quorum.
11.5. Chair to preside over General MeetingsThe Chair of the Board shall preside as Chair at every General Meeting of the Company or if there is no Chair or if the Chair is not present within fifteen (15) minutes after the time appointed for the holding of the meeting or is unwilling to act then the Members present shall elect one (1) of their Members to be Chair of the meeting.
11.6. Conduct of General Meetings (a) The Chair:
(i) has charge of the general conduct of the meeting and of the procedures to be adopted;
(ii) may require the adoption of any procedure which in his or her opinion is necessary or desirable for proper and orderly debate or discussion or the proper and orderly casting or recording of votes; and
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(iii) may, having regard where necessary to the Corporations Act, terminate discussion or debate on any matter whenever he considers it necessary or desirable for the proper conduct of the meeting.
(b) A decision by the Chair under this clause 11.6 is final.
11.7. Adjournment of General Meeting (a) The Chair may, with the consent of any meeting at which a quorum is present,
and must if so directed by the meeting, adjourn the meeting or any business, motion, question, resolution, debate or discussion being considered or remaining to be considered by the meeting.
(b) The adjournment may be either to a later time at the same meeting or to an adjourned meeting at any time and place agreed by vote of the members present.
(c) Only unfinished business is to be transacted at a meeting resumed after an adjournment.
11.8. Notice of adjourned meetingIt is not necessary to give any notice of an adjournment or of the business to be transacted at any adjourned meeting unless a meeting is adjourned for 30 days or more.
In that case, at least the same period of notice as was originally required for the meeting must be given for the adjourned meeting.
11.9. Questions decided by majoritySubject to the requirements of the Corporations Act and except in the case of a Special Resolution, a resolution is carried if a simple majority of the votes cast on the resolution are in favour of it.
11.10. Equality of votesWhere an equal number of votes are cast in favour of and against the resolution, the resolution is not carried.
11.11. Declaration of results(a) At any General Meeting a resolution put to the vote of the meeting must be
decided on a show of hands unless a poll is properly demanded and the demand is not withdrawn.
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(b) A declaration by the Chair that a resolution has on a show of hands been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the minutes of the meetings of the Company, is conclusive evidence of the fact.
(c) Neither the Chair nor the minutes need state, and it is not necessary to prove, the number or proportion of the votes recorded for or against the resolution.
11.12. Poll(a) If a poll is properly demanded in accordance with the Corporations Act or by
the Chair of the meeting, it must be taken in the manner and at the date and time directed by the Chair, and the result of the poll is the resolution of the meeting at which the poll was demanded.
(b) A poll demanded on the election of a Chair or on a question of adjournment must be taken immediately.
(c) A demand for a poll may be withdrawn.
(d) A demand for a poll does not prevent the General Meeting continuing for the transaction of any business other than the question on which the poll was demanded.
11.13. Objection to voting qualification(a) An objection to the right of a person to attend or vote at a General Meeting
(including an adjourned meeting):
(i) may not be raised except at that meeting; and
(ii) must be referred to the Chair, whose decision is final.
(b) A vote not disallowed under the objection is valid for all purposes.
11.14. Chair to determine any poll disputeIf there is a dispute about the admission or rejection of a vote, the Chair must decide it and the Chair’s decision made is final.
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12. Votes of Members
12.1. Votes of Members(a) At a General Meeting, on a show of hands and on a poll, each of the Members
shall have the votes set out in this clause 12.1.
(b) Each Member will receive one (1) vote.
12.2. Resolutions not in General Meeting (a) If all Members sign a document containing a statement that they are in favour
of a resolution in terms set out in the document, a resolution in those terms is deemed to have been passed at a General Meeting of the Company held at the time on which the document was signed by the last Member entitled to vote.
(b) For the purposes of clause (a), two (2) or more separate documents containing statements in identical terms, each of which is signed by one (1) or more Members, are deemed together to constitute one (1) document containing a statement in those terms signed by those Members on the respective days on which they signed the separate documents.
(c) A facsimile transmission or other form of visible or other electronic communication purported to be signed by a Member for the purpose of this clause is deemed to be a document in writing signed by that Member.
13. Directors
13.1. Number of Directors(a) Subject to clause 13.1(b), the Board shall comprise not less than five (5) and
not more than eleven (11) Directors.
(b) At all time, at least one (1) Director must be blind or vision impaired and:
(i) where there are nine (9) or more Directors, at least two (2) Directors must be permanent residents of Tasmania; and
(ii) where there are eight (8) or less Directors, at least one (1) Director must be a permanent resident of Tasmania.
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(c) The office bearers of the Company shall consist of a Chair, Vice Chair and Secretary all of whom shall be appointed by the Board from amongst the Board members.
(d) The Company may from time to time by resolution passed at a General Meeting increase or reduce the number of Directors.
13.2. Directors’ qualificationsBefore the Board appoints a Director under clause 13.7 or a Member nominates a person as a Director under clause 13.4, the Board or Member (as the case may be) must consider the relevant person on merit:
(a) in the context of the professional skills, experience, independence and knowledge which the Board as a whole requires to be effective;
(b) against objective criteria and with due regard to the benefit of diversity of the Board; and
(c) taking into account their participation in or specific knowledge of or experience in the Objects of the Company..
13.3. First DirectorsThe persons named in Item 1 of the Schedule shall constitute the first Board.
(a) the first named [3] Directors must retire at the commencement of the first AGM but shall be eligible for re-election;
(b) the second named [4] Directors must retire at the commencement of the second AGM but shall be eligible for re-election; and
(c) the third named [3] Directors must retire at the commencement of the third AGM but shall be eligible for re-election.
13.4. Nomination for election(a) Any Member may nominate a person to fill a vacancy in an elected Director
position that is to be the subject of an election at the next AGM. The nominated person must be a Member.
(b) A nomination must:
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(i) be in the form required by the Directors, which shall include an explanation by the nominator of how the nominee meets the qualifications set out in clause 13.2; and
(ii) signed by the nominator and nominee.
(c) Members’ nominations (which comply with this clause) for elections to positions falling vacant must be received no less than 2 months before the AGM at which the nominated person seeks to be elected.
13.5. Term of officeA Director will hold office for a term of three (3) years.
13.6. Maximum term of office for Directors(a) A Director may not serve more than three (3) consecutive terms as a Director
(b) A Director who has served a maximum term in accordance with clause (a) shall not be eligible to be a Director for six (6) years following the completion of their maximum term.
(c) A Director shall not be eligible to serve more than three (3) terms in any fifteen (15) year period.
13.7. Casual vacancyThe Board (or such Directors as shall hold office at the relevant time) shall have the power at any time and from time to time to appoint any person as a Director either to fill a casual vacancy or as an addition to the existing office-bearers or other Directors but so that the total number of office-bearers and other Directors shall not at any time exceed the number fixed in accordance with clause (a). Any Director so appointed shall hold office until the commencement of the AGM at which the Director whose place the appointee fills become vacant by application of the rotation created by this clause 13 but shall be eligible for re-election.
13.8. Remuneration of Directors A Director may not be paid for services as a Director but, with the approval of the Directors and subject to the Corporations Act, may be:
(a) paid by the Company for services rendered to it other than as a Director; and
(b) reimbursed by the Company for their reasonable travelling, accommodation and other expenses when:
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(i) travelling to or from meetings of the Directors, a Committee or the Company; or
(ii) otherwise engaged in the affairs of the Company.
13.9. Removal of DirectorThe Company may by ordinary resolution at an Extraordinary General Meeting convened on not less than 28 days’ notice prior to the date of the meeting remove any Director before the expiration of his or her term of office and may by an ordinary resolution appoint another person in his or her stead. The person so appointed shall hold office until the AGM at which the Director whose place the appointee fills becomes vacant by application of the rotation of Directors created by this clause 13 but shall be eligible for re-election.
13.10. Vacation of office(a) The position of a person as a Director and that person’s office as a Director
shall cease and become vacant if he or she:
(i) dies; or
(ii) resigns by notice in writing; or
(iii) is disqualified from acting as Director as a consequence of any provision of the Corporations Act; or
(iv)becomes mentally ill or his or her affairs comes under the protective jurisdiction; or
(v) becomes bankrupt or makes an assignment to or composition with his or her creditors.
(b) No proceedings of the Board shall be invalidated by reason of the fact that a Director takes part in a meeting or votes on a resolution of the Board whilst disqualified unless the other Directors at the meeting knew of or could reasonably have known of the disqualification.
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14. Powers and duties of Directors
14.1. Directors to manage Company The Directors are to manage the Company's business and may exercise those of the Company's powers that are not required, by the Corporations Act or by this Constitution, to be exercised by the Company in a General Meeting.
14.2. Specific powers of Directors (a) The Board has and may exercise any of the functions conferred or imposed on
it by or under this Constitution.
(b) Without prejudice to and without limiting the powers conferred by this Constitution, the Board shall have the power to do any of the following:
(i) open and maintain a bank account or bank accounts to be operated by such person or persons whether Directors or not as it shall from time to time determine;
(ii) appoint the CEO;
(iii) via the CEO employ and superannuate officers and employees;
(iv)publish and distribute information concerning this Constitution and the regulations to members and other interested persons;
(v) do all such other things that are in the opinion of the Board incidental to or conducive to the attainment of the Objects;
(vi)do all things necessary to give effect to the powers contained in this Constitution; and
(vii) do all such things as may be permitted by the Corporations Act.
(c) All acts done by any meeting of the Board or of a Committee or by any person acting as a Director are valid even though it is afterwards discovered that there was some defect in the appointment of a person to be a Director or a member of the Committee, or to act as a Director, or that a person was so appointed was disqualified.
(d) The Board may exercise all the powers of the Company to borrow money and to mortgage or charge its property or any part thereof and to issue debentures
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and other securities whether outright or as security for any debt liability or obligation of the Company.
(e) All cheques promissory notes drafts bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed drawn accepted endorsed or otherwise executed as the case may be by any two (2) Directors or in such other manner as the Board from time to time determines.
14.3. Appointment of attorney(a) The Directors may appoint any person to be the Company’s attorney for such
purposes, with such powers, authorities and discretions (being powers, authorities and discretions vested in or exercisable by the Directors) for such period and subject to such conditions as they think fit.
(b) Any such power of attorney may contain such provisions for the protection and convenience of persons dealing with the attorney as the Directors think appropriate and may also authorize the attorney to delegate all or any of the powers, authorities and discretions vested in that person.
14.4. MinutesThe Board must cause minutes of:
(a) proceedings and resolutions of meetings of Members;
(b) the names of Directors present at each Board meeting, Committee meeting or meeting of Members;
(c) proceedings and resolutions of Board meetings (including meetings of Committees to which the Board powers are delegated under clause 17);
(d) written resolutions passed by Directors; and
(e) disclosures and notices of Directors interests,
to be kept in accordance with Australian law.
15. Company seal
15.1. Common seal The Board:
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(a) may decide whether or not the Company has a common seal; and
(b) is responsible for the safe custody of that seal (if any) and any duplicate seal it decides to adopt under the Corporations Act.
15.2. Use of seals The common seal and duplicate seal (if any) may only be used with the authority of the Board, which must not be given if the use of a seal that does not comply with the Corporations Act.
15.3. Fixing seals to documents The fixing of the common seal, or any duplicate seal, to a document must be witnessed:
(a) by two (2) Directors;
(b) by one (1) Director and one (1) Secretary; or
(c) by any other signatories or in any other way authorised by the Board.
16. Proceedings of Directors
16.1. Directors’ meetings(a) The Board may meet together for conducting business adjourn and otherwise
regulate its meetings as it thinks fit.
(b) A Director may at any time and the person performing the duties of Secretary to the Board shall on the requisition of a Director convene a meeting of the Board.
16.2. Questions decided by majoritySubject to this clause 16 questions arising at any meeting of the Board shall be decided by a majority of votes and a determination by a majority of the Directors present shall for all purposes be deemed a determination of the Board.
16.3. Chair’s casting voteIn case of an equality of votes the Chair of the meeting shall have a second or casting vote.
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16.4. QuorumThe quorum necessary for the transaction of the business of the Board shall be a majority of the total number of Directors or such greater number as may be fixed by the Directors.
16.5. Effect of vacancy(a) The continuing Directors may act notwithstanding any vacancy in the Board.
(b) If and so long as their number is reduced below the number fixed as the quorum the continuing Director or Directors may act for the purpose of increasing the number of Directors to that number or of convening a General Meeting of the Company but for no other purpose.
16.6. Convening meetings (a) A Director may, and the CEO on the request of a Director must, convene a
Directors' meeting.
(b) Notice of a meeting of Directors must be given individually to each Director (except a Director on leave of absence approved by the Directors). Notice of a meeting of Directors may be given in person, or by post or by telephone, facsimile or other electronic means.
(c) A Director may waive notice of a meeting of Directors by giving notice to that effect to the Company in person or by post or by telephone, facsimile or other electronic means.
(d) A person who attends a meeting of Directors waives any objection that person may have in relation to a failure to give notice of the meeting.
(e) The non-receipt of a notice of a meeting of the Directors or the accidental omission to give notice of a meeting to a person entitled to receive notice does not invalidate anything done (including the passing of a resolution) at a meeting of Directors.
16.7. Election of Chair (a) The Directors may elect one (1) of their number to be the Chair by a majority
vote.
(b) The Director elected to be Chair under clause (a) will remain Chair for the duration of their term of office as Director and shall chair any meeting of
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Directors unless the resolution electing a person as the Chair specifies a fixed term for the appointment.
(c) Despite clause (b), if:
(i) there is no person elected as Chair; or
(ii) the Chair is not present within 15 minutes after the time appointed for the holding of the meeting; or
(iii) the Chair is unwilling to act,
the Directors present may elect one (1) of their number to be Chair of the meeting.
16.8. Circulating resolutions (a) The Directors may pass a resolution without a Directors’ meeting being held if
notice in writing of the resolution is given to all Directors and a majority of the Directors entitled to vote on the resolution (not being less than the number required for a quorum at a meeting of Directors) sign a document containing a statement that they are in favour of the resolution set out in the document.
(b) Separate copies of the document may be used for signing by the Directors if the wording of the resolution and statement is identical in each copy. A facsimile transmission or other document produced by electronic means under the name of a Director with the Director’s authority is taken to be a document signed by the Director for the purposes of clause (a) and is taken to be signed when received by the Company in legible form.
(c) The resolution is passed when the last Director signs.
16.9. Validity of acts of Directors Everything done at a Directors’ meeting or a Committee meeting, or by a person acting as a Director, is valid even if it is discovered later that there was some defect in the appointment, election or qualification of any of them or that any of them was disqualified or had vacated office.
16.10. Directors’ interests (a) A Director shall declare to the Directors any material personal interest or
related party transaction, as defined by the Corporations Act, as soon as practicable after that Director becomes aware of their interest in the matter.
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(b) Where a Director declares a material personal interest or in the event of a related party transaction, that Director must absent himself or herself from discussion of such matter and shall not be entitled to vote in respect of such matter unless otherwise determined by the Directors.
(c) In the event of any uncertainty in this regard, the issue shall immediately be determined by a vote of the Directors or, if this is not possible, the matter shall be adjourned or deferred to the next meeting.
(d) The CEO shall maintain a register of declared interests.
16.11. Director’s resolutionsA resolution in writing signed by all Directors for the time being entitled to receive notice of a meeting of the Board shall be as valid and effectual as if it had been passed at a meeting of the Board duly convened and held. Any such resolution may consist of several documents in like form each signed by one (1) or more Directors.
17. Committees
17.1. Committees(a) The Board may delegate any of its powers and or functions (not being duties
imposed on the Board as the Directors of the Company by all relevant law including the Corporations Act) to one (1) or more committees (consisting of such Members of the Company) as the Board thinks fit and:
(i) must comply with any regulations that may be given by the Board;
(ii) shall have the power to co-opt any other member or members; and
(iii) all members of such committees shall have one (1) vote.
(b) The Board may appoint one (1) or more advisory committees consisting of such member or members of the Board and such other Member or Members of the Company as the Board thinks fit and:
(i) such advisory committees shall act in an advisory capacity only;
(ii) must comply with any regulations that may be given by the Board;
(iii) shall have power to co-opt any other member or members of the Company; and
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(iv)all members of such advisory committees shall have one (1) vote.
17.2. Committee meetings(a) Every Committee may meet and adjourn as it thinks proper.
(i) questions arising at any meeting shall be determined by a majority of votes of the members present; and
(ii) in the case of an equality of votes the Chair shall have a second or casting vote.
(b) All acts done by any meeting of the Board or a Committee or by any Director shall notwithstanding that it is afterwards discovered that there was some defect in the appointment of the Committee or Director or that the Directors or any of them were disqualified be as valid as if every such person had been duly appointed and was qualified to be a Director or Committee member.
18. Chief executive officer
18.1. Appointment of CEO(a) A CEO may be employed by the Board for such term and upon such
conditions as the Board may from time to time determine.
(b) The Board may, from time to time, appoint a person to act as CEO during the illness or absence of the CEO and the person, while so acting, has and may exercise all of the functions of the CEO and is taken to be CEO.
18.2. Powers, duties and authorities of CEO(a) The CEO has and may exercise such functions as are conferred or imposed
on the CEO by the Board.
(b) The CEO shall have power to enter into contracts binding the Company up to a value that shall from time to time be determined by the Board.
(c) The CEO shall be a Member.
18.3. DelegationThe CEO may delegate to a person the exercise of:
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(a) any of the functions of the CEO under this Constitution other than this power of delegation; or
(b) any functions delegated to the CEO by the Board, unless the Board otherwise provides in its instrument of delegation.
19. Accounts
19.1. Accounting records(a) The Board shall cause proper accounting and other records to be kept and
shall distribute copies of every profit and loss account and balance sheet (including every document required by law to be attached thereto) accompanied by a copy of the Auditor’s report as required by Australian law to every Member.
(b) The Board shall cause to be made out and laid before each AGM a balance sheet and profit and loss account made up to the end of the Company’s financial year but in no case shall that date be more than five (5) months before the date of the meeting.
(c) The Board shall from time to time determine at what times and places and under what conditions or regulations the accounting and other records of the Company shall be open to the inspection of Members provided that all Members shall have reasonable opportunity to inspect those records.
19.2. Auditor(a) If and as may be required by Australian law, the Board must cause the
Company’s financial report each financial year to be audited or reviewed and obtain an auditor’s report.
(b) The eligibility, appointment, removal, remuneration, rights and duties of the auditor are regulated by Australian law.
20. Service of documents
20.1. NoticesA notice may be given by the Company to any Member either:
(a) personally; or
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(b) by sending it by post to the Member at the address if any supplied by the Member to the Company for giving of notices to the Member; or
(c) to any address given by the Member to the Company for the delivery of facsimile messages or messages transmitted by electronic or like means.
20.2. PostWhere a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing pre-paying and posting a letter containing the notice and to have been effected (except in the case of a notice of a meeting) at the time at which the letter would be delivered in the ordinary course of post.
20.3. Facsimile or electronic transmission(a) In the case of a facsimile notice or an electronic notice (except in the case of a
notice of meeting) to be effected by properly addressing the facsimile or notice to the electronic address and dispatching the same by the appropriate electronic means and to have been effected four (4) hours after the time of transmission.
(b) Any notice by a court of law or otherwise required or allowed to be given by the Company to members or any of them by advertisement shall be sufficiently advertised if advertised once in one (1) daily newspaper circulating in the State or Territory capital city and metropolitan area of the State or Territory in which a majority of the Members have a registered address and in case of joint holders shall be the address of the joint holder who is first named on the Register.
21. Indemnity(a) Subject to the provisions of the Corporations Act every Director Secretary or
officer of the Company or any person employed by the Company shall be indemnified out of the funds of the Company against all liability incurred by such person as a Director or officer in defending any proceedings whether civil or criminal in which judgement is given in the persons favour or in which the person is acquitted or in connection with any application under the Corporations Act in which relief is granted to the person by a court.
(b) Subject to the Corporations Act no Director of the Company shall be liable for the acts receipts neglect or defaults of any other Director or for joining in any receipt or other act for conformity or for any loss or expense happening to the
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Company through the inefficiency or deficiency of title to any property acquired by order of the Directors or on behalf of the Company or for the insufficiency or deficiency of any security in or upon which any of the monies of the Company shall be invested or for any loss or damage arising from the bankruptcy insolvency or tortuous act of any person with whom any monies securities or effects shall be deposited or for any loss occasioned by any error of judgement omission default or oversight on the persons part or for any other loss damage or misfortune whatsoever which shall happen in relation to those things unless the same shall happen through the persons own gross negligence, wilful default, wilful breach of duty, wilful breach of trust or dishonesty.
(c) To the extent permitted by law the Company may pay, or agree to pay, a premium in respect of a contract insuring a person who is or has been a Director or officer of the Company against liability incurred by the person in his or her capacity as a Director or officer of the Company provided that the liability does not arise out of conduct involving a wilful breach of duty in relation to the Company or a contravention of the Corporations Act.
22. Dissolution and winding up
22.1. Contributions of Members on winding up (a) Each Member must contribute to the Company's property if the Company is
wound up while they are a Member or within one (1) year after their membership ceases.
(b) The contribution is for:
(i) payment of the Company’s debts and liabilities contracted before their membership ceased;
(ii) the costs of winding up; and
(iii) adjustment of the rights of the contributories among themselves,
(iv)and the amount is not to exceed $1.00.
22.2. Excess property on winding-upIf upon the dissolution or winding-up of the Company there remains, after the satisfaction of all its debts and liabilities, any property whatever, the same shall not
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be paid to or distributed amongst the Members but shall be given or transferred to some other fund, authority or institution:
(a) having objects similar to the objects of the Company;
(b) which prohibits the distribution of its income and property to a similar extent to that imposed on the Company by this Constitution; and
(c) which is approved by the Commissioner of Taxation as a fund, authority or institution contemplated above.
22.3. TaxIf just before the winding-up of the Company, the Company is an entity to which income tax deductible gifts can be made or a prior winding-up of the Separate Gift Fund or upon the Company ceasing to be endorsed as a deductible gift recipient pursuant to the Income Tax Assessment Act 1997 (if it has been) whichever event shall occur first in time any surplus assets of the Company or the separate Gift Fund as the case may require, remaining after the payment of the Company’s liabilities shall be transferred to another fund, authority or institution in Australia which have similar objects to the Company and which is body that may receive tax deductible gifts under the Income Tax Assessment Act 1997. Where gifts to the Company are deductible only if among other things the conditions set out in the relevant table item of the Income Tax Assessment Act 1997 are satisfied a transfer under this rule must be made in accordance with those conditions.
23. Separate gift fund(a) If the purposes of the Company include a charitable purpose permitting the
Company to be an entity to which tax deductible gifts can be made then the Company must set up, establish and maintain for that purpose a Separate Gift Fund into which all gifts of money or property gifted for the charitable purpose are to be made and into which any money received by the Company by reason of such gifts is to be credited.
(b) No money or property other than the property or money gifted to the Company for the charitable purpose and in particular (charitable gifts) may be paid into the Separate Gift Fund.
(c) The Company must use:
(i) gifts made to the Gift Fund; and
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(ii) any money received because of such gifts,
only for the charitable purpose.
(d) All receipts for gifts to the Separate Gift Fund must be issued in the name of the Company and must include:
(i) the name of the Company and the purpose for which the gift is applied;
(ii) the fact that the receipt is for a gift; and
(iii) the Australian Business Number of the Company.
24. By-laws and regulations(a) The Company may at a General Meeting pass a resolution (not being a
Special Resolution) making, altering or revoking a by-law or regulation dealing with:
(i) the rights or obligations of Members; or
(ii) other matters,
which are not specified in this Constitution or the Corporations Act.
(b) A by-law or regulation which, directly or indirectly, is inconsistent with a provision of this Constitution or the Corporations Act is invalid.
(c) A copy of every alteration or addition made to the by-laws or regulations is to be sent to every Member at their last known address.
(d) The omission, unless wilfully made, to send a copy or the non-receipt of it does not invalidate the alteration or addition.
(e) The Board is the sole authority for interpreting the by-laws and regulations.
25. Adoption and amendments of Constitution(a) The Members may amend or repeal this Constitution, or a provision of this
Constitution, by Special Resolution passed at either an AGM or at an extraordinary General Meeting.
(b) A notice of the proposed alterations must be provided to every Member at least twenty eight (28) days prior to the date of the meeting.
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(c) A Special Resolution amending, adopting or repealing this Constitution takes effect:
(i) if no later date is specified in the resolution, then on the date on which the resolution is passed; or
(ii) on a later date specified in, or determined in accordance with, the resolution.
(d) The Company must send of a copy of this Constitution (as amended from time to time) to a Member within seven (7) days if the Member:
(i) asks the Company, in writing for the copy; and
(ii) pays any fee (up to the prescribed amount) required by the Company.
26. Inconsistency with Corporations Act(a) In the event that this Constitution is inconsistent with or in breach of any of the
provisions of the Corporations Act then this Constitution shall be read down to the extent that they shall comply with the Corporations Act and any provision that is inconsistent with or in breach of the provisions of the Corporations Act shall be deemed to be struck out and shall not form part of this Constitution.
(b) In the event that the provisions of the Corporations Act permits an act to be done, a decision to be made or a meeting to be held in a way that is more convenient for the Company or the Directors or is more favourable to the Members or the Directors than as required or permitted by this Constitution then the Directors may but shall not be obliged so to do (unless the law so requires) to make the decision, take the action, give the notice or hold the meeting or do the particular thing as is permitted and in the time and in the manner permitted by law.
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Schedule 1Item 1: First Directors
Number Name Term to Expire After Year
1 Debra Ruth Schaffer 3
2 David Anthony Craig 1
3 Helen Margaret Smith 3
4 David Martin Ligovich 3
5 Iain Douglas Murray 2
6 Lana Joy Thompson 2
7 Ian Russell Blackburn 1
8 Jennifer Jean Dawson 2
9 David Oliver Bevan 1
10 Dean Cyril John Pike 2
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