Constitution of Reframing Autism Ltd
Respect. Accept. Embrace. Empower.
Australian Company Number (ASIC) 634 493 628
Australian Business Number 33 634 493 628
A Company Limited by Guarantee
PO Box 444, St Leonards NSW 1590
1. Name of the company
The name of the company is REFRAMING AUTISM LTD (the company).
2. Type of company
The company is a not-for-profit public company limited by guarantee which is established to be, and to continue as, a charity.
3. Limited liability of members
The liability of members is limited to the amount of the guarantee in Clause 4.
4. The guarantee
Each member must contribute an amount not more than $10 (the guarantee) to the property of the company if the company is wound up while the member is a member, or within 12 months after they stop being a member, and this contribution is required to pay for the:
a) debts and liabilities of the company incurred before the member stopped being a member, or
b) costs of winding up.
This organisation was auspiced by Plumtree Children’s Services in June 2019 with funding from the National Disability Insurance Scheme under the Program Name ‘Community Inclusion Capacity Development’ and Activity Name of ‘Information Linkages and Capacity Building (ILC) Readiness Round 2018-19’.
Plumtree Children’s Services incubated the initiative prior to this time by dedicating financial and organisational resources to develop the initiative since 2015, with the intention that it would become independent in due course. The Plumtree Board were in full support of the resources allocated to incubate this initiative as it was consistent with the vision and values of the organisation and in particular, it progressed the goal of empowering families to be the most significant influence in their child’s life. The Board therefore, request that this historical foundation be included in the Constitution to ensure that the role of Plumtree in the inception of this new organisation is recognised.
In February 2020, the organisation received funding directly, as an independent company, from the National Disability Insurance Scheme under the Activity Name of ‘ILC Individual Capacity Building’ Grant Round.
Definitions and Interpretation
In this constitution:
ACNC Act means the Australian Charities and Not-for-profits Commission Act 2012 (Cth)
company means the company referred to in clause 1
Corporations Act means the Corporations Act 2001 (Cth)
elected chairperson means a person elected by the directors to be the company’s chairperson under clause 50.
general meeting means a meeting of members and includes the annual general meeting, under clause 25.1
initial member means a person who is named in the application for registration of the company, with their consent, as a proposed member of the company
member present means, in connection with a general meeting, a member present in person, by representative or by proxy at the venue or venues for the meeting
organisation means an incorporated or unincorporated organisation
organisational member means a member who is an organisation
registered charity means a charity that is registered under the ACNC Act
special resolution means a resolution:
a) of which notice has been given under clause 26.5(c), and
b) that has been passed by at least 75% of the votes cast by members present and entitled to vote on the resolution
surplus assets means any assets of the company that remain after paying all debts and other liabilities of the company, including the costs of winding up.
7. Reading this constitution with the Corporations Act
7.1. The replaceable rules set out in the Corporations Act do not apply to the company.
7.2. While the company is a registered charity, the ACNC Act and the Corporations Act override any clauses in this constitution which are inconsistent with those Acts.
7.3. If the company is not a registered charity (even if it remains a charity), the Corporations Act overrides any clause in this constitution which is inconsistent with that Act.
7.4. A word or expression that is defined in the Corporations Act, or used in that Act and covering the same subject, has the same meaning as in this constitution.
In this constitution:
a) The words ‘including’, ‘for example’, or similar expressions mean that there may be more inclusions of examples than those mentioned after that expression, and
b) Reference to an Act includes every amendment, re-enactment, or replacement of that Act and any subordinate legislation made under that Act (such as regulations).
Charitable Purposes and Powers
Reframing Autism aims to create a world in which the Autistic community is supported by families and allies to achieve genuine acceptance, inclusion, and active citizenship, and in which Autistic culture and identity are celebrated and nurtured.
Reframing Autism is a company run by and for Autistic people, and for their families and allies. We combine capacity-building and leadership development with education, research, resource development, mentoring, and support to strengthen the Autistic community. We also promote a united community, bridging the divisive gap between the Autistic community (those identified or who self-identify as Autistic) and the ‘Autism’ community (the broader non-autistic community with a connection to Autism).
Through Reframing Autism, Autistic people, and non-autistic families and allies of the Autistic community, come together to understand Autism. We promote equity and acceptance. Our vision and goals align with the Australian National Disability Strategy 2010−2020 and the UN Convention on the Rights of Persons with Disabilities.
Reframing Autism builds hope in the Autistic community by fostering great expectations for a rewarding life grounded in the civil, political and social participation of Autistic people. Reframing Autism also builds hope in the families and allies of Autistic people, moving beyond the narrative of causes, cures and interventions and offering a way to embrace the Autistic community.
Working within the neurodiversity movement, Reframing Autism provides both support and education. Through Reframing Autism, families and allies learn from Autistic people of all ages, to establish inclusion founded in reciprocal respect and a mutually supportive community. It encourages environments in which Autistic individuals can live authentically, and it builds the capacity of families, allies and Autistic people themselves to be leaders and change agents.
Reframing Autism is a Health Promotion Charity, and its activities are intended to improve the current bleak mental health profile of the Autistic community, caused by lifelong exposure to discrimination, stigmatisation and exclusion.
Our objectives are to:
Empower Autistic individuals to be leaders for their community.
Support families and allies to meet the needs of Autistic people by embracing the principles of acceptance, respect, and neurodiversity.
Provide the broad community, especially the families and allies of Autistic individuals, access to Autistic lived experiences and perspectives through education and information.
Provide opportunities to include underrepresented and marginalised Autistic individuals in Reframing Autism’s governance, educational framework, and in participatory research.
Bring a national focus to the nature, role and importance of parenting Autistic children with acceptance and respect, and to provide Autistic representation in appropriate policy making and funding bodies.
Enhance the capability of families through training, workshops, and mentoring.
Provide a national forum for communicating and sharing information, philosophies, and practices that are respectful of Autistic neurology.
Provide accessible and informative resources for Autistic individuals, and their families and allies.
Undertake evaluation and research, to ensure Reframing Autism continues to produce quality outcomes and transferability.
Establish a partnership ecosystem with relevant peak representative bodies nationally.
Reframing Autism’s values are: Respect, Accept, Embrace, Empower.
Subject to clause 10, the company has the following powers, which may only be used to carry out its purpose(s) set out in clause 9:
a) the powers of an individual, and
b) all the powers of a company limited by guarantee under the Corporations Act.
11.1. The company must not distribute any income or assets directly or indirectly to its members, except as provided in clauses 11.2 and 78.
11.2. Clause 11.1 does not stop the company from doing the following things, provided they are done in good faith:
a) paying a member for goods or services they have provided or expenses they have properly incurred at fair and reasonable rates or rates more favourable to the company, or
b) making a payment to a member in carrying out the company’s charitable purpose(s).
12. Amending the constitution
12.1. Subject to clause 12.2, the members may amend this constitution by passing a special resolution.
12.2. The members must not pass a special resolution that amends this constitution if passing it causes the company to no longer be a charity.
13. Membership and register of members
13.1. The members of the company are:
a) the initial members named in the application for the company’s registration, and
b) any other person that the directors allow to be a member, in accordance with this constitution.
13.2. The company must establish and maintain a register of members. The register of members must be kept by the secretary and must contain:
a) for each current member:
iii. any alternative address nominated by the member for the service of notices, and
iv. date the member was entered on to the register.
b) for each person who stopped being a member in the last 7 years:
iii. any alternative address nominated by the member for the service of notices, and
iv. dates the membership started and ended.
13.3. The company must allow current members access to the register of members.
13.4. Information that is accessed from the register of members must only be used in a manner relevant to the interests or rights of members.
14. Who can be a member
14.1. A person who supports the purposes of the company is eligible to apply to be a member of the company under clause 15.
14.2. In this clause, ‘person’ means an individual or an organisation.
15. How to apply to become a member
A person (as defined in clause 14.1) may apply to become a member of the company by writing to the secretary stating that they:
a) want to become a member
b) support the purpose(s) of the company, and
c) agree to comply with the company’s constitution, including paying the guarantee under clause 4 if required.
16. Directors decide whether to approve membership
16.1. The directors must consider an application for membership within a reasonable time after the secretary receives the application.
16.2. If the directors approve an application, the secretary must as soon as possible:
a) enter the new member on the register of members, and
b) write to the applicant to tell them that their application was approved, and the date that their membership started (see clause 17).
16.3. If the directors reject an application, the secretary must write to the applicant as soon as possible to tell them that their application has been rejected, but does not have to give reasons.
16.4. For the avoidance of doubt, the directors may approve an application even if the application does not state the matters listed in clauses 15(a), 15(b) or 15(c). In that case, by applying to be a member, the applicant agrees to those three matters.
17. When a person becomes a member
Other than initial members, an applicant will become a member when they are entered on the register of members.
18. When a person stops being a member
A person immediately stops being a member if they:
b) are wound up or otherwise dissolved or de-registered, resign, by writing to the secretary
c) are expelled under clause 20, or
d) have not responded within one month to a written request from the secretary that they confirm in writing that they want to remain a member.
Dispute Resolution and Disciplinary Procedures
19. Dispute resolution
19.1. The dispute resolution procedure in this clause applies to disputes (disagreements) under this constitution between a member or director and:
a) one or more members
b) one or more directors, or
c) the company.
19.2. A member must not start a dispute resolution procedure in relation to a matter which is the subject of a disciplinary procedure under clause 20 until the disciplinary procedure is completed.
19.3. Those involved in the dispute must try to resolve it between themselves within 14 days of knowing about it.
19.4. If those involved in the dispute do not resolve it under clause 19.3, they must within 10 days:
a) tell the directors about the dispute in writing
b) agree or request that a mediator be appointed, and
c) attempt in good faith to settle the dispute by mediation.
19.5. The mediator must:
a) be chosen by agreement of those involved, or
b) where those involved do not agree:
i. for disputes between members, a person chosen by the directors, or
ii. for other disputes, a person chosen by either the Commissioner of the Australian Charities and Not-for-profits Commission or the president of the law institute or society in the state or territory in which the company has its registered office.
19.6. A mediator chosen by the directors under clause 19.5(b)(i):
a) may be a member or former member of the company
b) must not have a personal interest in the dispute, and
c) must not be biased towards or against anyone involved in the dispute.
19.7. When conducting the mediation, the mediator must:
a) allow those involved a reasonable chance to be heard
b) allow those involved a reasonable chance to review any written statements
c) ensure that those involved are given natural justice, and
d) not make a decision on the dispute.
20. Disciplining members
20.1. In accordance with this clause, the directors may resolve to warn, suspend or expel a member from the company if the directors consider that:
a) the member has breached this constitution, or
b) the member’s behaviour is causing, has caused, or is likely to cause harm to the company.
20.2. At least 14 days before the directors’ meeting at which a resolution under clause 19.1 will be considered, the secretary must notify the member in writing:
a) that the directors are considering a resolution to warn, suspend or expel the member
b) that this resolution will be considered at a directors’ meeting and the date of that meeting
c) what the member is said to have done or not done
d) the nature of the resolution that has been proposed, and
e) that the member may provide an explanation to the directors, and details of how to do so.
20.3. Before the directors pass any resolution under clause 20.1, the member must be given a chance to explain or defend themselves by:
a) sending the directors a written explanation before that directors’ meeting, and/or
b) speaking at the meeting.
20.4. After considering any explanation under clause 20.2, the directors may:
a) take no further action
b) warn the member
c) suspend the member’s rights as a member for a period of no more than 12 months
d) expel the member
e) refer the decision to an unbiased, independent person on conditions that the directors consider appropriate (however, the person can only make a decision that the directors could have made under this clause), or
f) require the matter to be determined at a general meeting.
20.5. The directors cannot fine a member.
20.6. The secretary must give written notice to the member of the decision under clause 20.4 as soon as possible.
20.7. Disciplinary procedures must be completed as soon as reasonably practical.
20.8. There will be no liability for any loss or injury suffered by the member as a result of any decision made in good faith under this clause.
General Meetings of Members
21. Calling of general meetings
21.1. A majority of directors may call a general meeting of members whenever they see fit.
22.2. Members may call a general meeting as provided by the Act.
22.3. A general meeting, to be called and annual general meeting, must be held at least once every calendar year (clause 25.)
22. Calling of general meetings by members
22.1. Members with at least 5% of the votes that may be cast at a general meeting may call, and arrange to hold, a general meeting. The members calling the meeting must pay the expenses of calling and holding the meeting.
22.2. The meeting must be called in the same way, as much as possible, in which general meetings of the company may be called.
22.3. The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company.
23. Calling of general meeting by directors when requested by members
23.1. The directors must call and arrange to hold an general meeting on the request of members with at least 5% of the votes that may be cast at a general meeting
23.2. The request must:
a) be in writing, and
b) state any resolution to be proposed at the meeting, and
c) be signed by members making the request, and
d) be given to the company.
23.3. 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.
23.4. The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company.
23.5. The directors must call the meeting within 21 day after the request is given to the company. The meeting is to be held not later than 2 months after the request ids given to the company.
24. Failure of directors to call a general meeting as requested by members
24.1. If the directors do not call the meeting within 21 days of being requested, 50% or more of the members who made the request may call and arrange to hold a general meeting.
24.2. To call and hold a meeting under clause 25.1 the members must:
a) as far as possible, follow the procedures for general meetings set out in this constitution,
b) call the meeting using the list of members on the company’s member register, which the company must provide to the members making the request at no cost, and
c) hold the general meeting within three months after the request was given to the company.
24.3. The company must pay the members who request the general meeting any reasonable expenses they incur because the directors did not call and hold the meeting.
25. Annual general meeting
25.1. A general meeting, called the annual general meeting, must be held:
a) within 12 months after registration of the company, and
b) after the first annual general meeting, at least once in every calendar year.
25.2. Even if these items are not set out in the notice of meeting, the business of an annual general meeting may include:
a) a review of the company’s activities
b) a review of the company’s finances
c) any auditor’s report
d) the election of directors, and
e) the appointment and payment of auditors, if any.
25.3. Before or at the annual general meeting, the directors must give information to the members on the company’s activities and finances during the period since the last annual general meeting.
25.4. The chairperson of the annual general meeting must give members as a whole a reasonable opportunity at the meeting to ask questions or make comments about the management of the company.
25.5. The following clauses 25 to 33, pertaining to general meetings, includes annual general meetings.
26. Notice of general meetings
26.1. Notice of a general meeting must be given to:
a) each member entitled to vote at the meeting[MH6]
b) each director, and
c) the auditor (if any).
26.2. Notice of a general meeting must be provided in writing at least 21 days before the meeting.
26.3. Subject to clause 26.4, notice of a meeting may be provided less than 21 days before the meeting if:
a) for an annual general meeting, all the members entitled to attend and vote at the annual general meeting agree beforehand, or
b) general meeting agree beforehand, or
c) for any other general meeting, members with at least 95% of the votes that may be cast at the meeting agree beforehand.
26.4. Notice of a meeting cannot be provided less than 21 days before the meeting if a resolution will be moved to:
a) remove a director
b) appoint a director in order to replace a director who was removed, or
c) remove an auditor.
26.5. Notice of a general meeting must include:
a) 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)
b) the general nature of the meeting’s business
c) if applicable, that a special resolution is to be proposed and the words of the proposed resolution
d) a statement that members have the right to appoint proxies and that, if a member appoints a proxy:
i. the proxy must be a member of the company
ii. the proxy form must be delivered to the company at its registered address or the address (including an electronic address) specified in the notice of the meeting, and
iii. the proxy form must be delivered to the company at least 48 hours before the meeting.
26.6. If a general meeting is adjourned (put off) for one month or more, the members must be given new notice of the resumed meeting.
27. Quorum at general meetings
27.1. For a general meeting to be held, at least 5 members (a quorum) must be present (in person, by proxy or by representative) for the whole meeting. When determining whether a quorum is present, a person may only be counted once (even if that person is a representative or proxy of more than one member).
27.2. No business may be conducted at a general meeting if a quorum is not present.
27.3. If there is no quorum present within 30 minutes after the starting time stated in the notice of general meeting, the general meeting is adjourned to the date, time and place that the chairperson specifies. If the chairperson does not specify one or more of those things, the meeting is adjourned to:
a) if the date is not specified – the same day in the next week
b) if the time is not specified – the same time, and
c) if the place is not specified – the same place.
27.4. If no quorum is present at the resumed meeting within 30 minutes after the starting time set for that meeting, the meeting is cancelled.
28. Auditor’s right to attend meetings
28.1. The auditor (if any) is entitled to attend any general meeting and to be heard by the members on any part of the business of the meeting that concerns the auditor in the capacity of auditor.
28.2. The company must give the auditor (if any) any communications relating to the general meeting that a member of the company is entitled to receive.
29. Representatives of members
29.1. An organisational member may appoint as a representative one individual to represent the member at meetings and to sign circular resolutions under clause 36.
29.2. The appointment of a representative by a member must:
a) be in writing
b) include the name of the representative
c) be signed on behalf of the member, and
d) be given to the company or, for representation at a meeting, be given to the chairperson before the meeting starts.
29.3. A representative has all the rights of a member relevant to the purposes of the appointment as a representative.
29.4. The appointment may be standing (ongoing).
30. Using technology to hold meetings
30.1. The company may hold a general meeting at two or more venues using any technology that gives the members as a whole a reasonable opportunity to participate, including to hear and be heard.
30.2. Anyone using this technology is taken to be present in person at the meeting.
31. Chairperson for general meetings
31.1. The elected chairperson is entitled to chair general meetings.
31.2. The members present and entitled to vote at a general meeting may choose a director or member to be the chairperson for that meeting if:
a) there is no elected chairperson, or
b) the elected chairperson is not present within 30 minutes after the starting time set for the meeting, or
c) the elected chairperson is present but says they do not wish to act as chairperson of the meeting.
32. Role of the chairperson
32.1. The chairperson is responsible for the conduct of the general meeting, and for this purpose must give members a reasonable opportunity to make comments and ask questions (including to the auditor, if any).
32.2. In the case of an equality of votes, whether on a show of hands or on a poll, the chair of the meeting has a casting vote in addition to any vote he or she may have in his or her capacity as a member or proxy.
32.3. The chair has a discretion both as to use of the casting vote (under clause 32.2) and as to the way in which it is used.
33. Adjournment of meetings
33.1. If a quorum is present, a general meeting must be adjourned if a majority of members present direct the chairperson to adjourn it.
33.2. Only unfinished business may be dealt with at a meeting resumed after an adjournment.
Members’ Resolutions and Statements
34. Members’ resolutions and statements
34.1. Members with at least 5% of the votes that may be cast on a resolution may give the company
a) notice of a resolution to be moved at a general meeting, or
b) a statement to be provided to members about a resolution or any other matter that may be properly considered at a general meeting.
34.2. The notice of resolution or statement must:
a) be in writing, and
b) set out the wording of the proposed resolution, and
c) be signed by the members proposing to move the resolution.
34.3. 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.
34.4. The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company.
35. Company must give notice of proposed resolution or distribute statement
35.1. If the company has been given a notice or request under clause 33:
a) in time to send the notice of proposed members’ resolution or a copy of the members’ statement to members with a notice of meeting, it must do so at the company’s cost, or
b) too late to send the notice of proposed members’ resolution or a copy of the members’ statement to members with a notice of meeting, then the members who proposed the resolution or made the request must pay the expenses reasonably incurred by the company in giving members notice of the proposed members’ resolution or a copy of the members’ statement.
35.2. The company does not need to send the notice of proposed members’ resolution or a copy of the members’ statement to members if:
a) it is more than 1,000 words long
b) the directors consider it may be defamatory
c) in the case of a proposed members’ resolution, the resolution does not relate to a matter that may be properly considered at a general meeting or is otherwise not a valid resolution able to be put to the members.
36. Circular resolutions of members
36.1. Subject to clause 36.3, the directors may put a resolution to the members to pass a resolution without a general meeting being held (a circular resolution).
36.2. The directors must notify the auditor (if any) as soon as possible that a circular resolution has or will be put to members, and set out the wording of the resolution.
36.3. Circular resolutions cannot be used:
a) for a resolution to remove an auditor, appoint a director or remove a director
b) for passing a special resolution, or
c) where the Corporations Act or this constitution requires a meeting to be held.
36.4. A circular resolution is passed if all the members entitled to vote on the resolution sign or agree to the circular resolution, in the manner set out in clause 36.5 or clause 36.6.
36.5. Members may sign:
a) a single document setting out the circular resolution and containing a statement that they agree to the resolution, or
b) separate copies of that document, as long as the wording is the same in each copy.
36.6. The company may send a circular resolution by email or other electronic means to members and members may agree by sending a reply email or respond to the other electronic means to that effect, including the text of the resolution in their reply.
Voting at General Meetings
37. How many votes a member has
Each member with voting rights has one vote.
38. Challenge to member’s right to vote
38.1. A member or the chairperson may only challenge a person’s right to vote at a general meeting at that meeting.
38.2. If a challenge is made under clause 38.1, the chairperson must decide whether or not the person may vote. The chairperson’s decision is final.
39. How voting is carried out
39.1. Voting must be conducted and decided by:
a) a show of hands
b) a vote in writing, or
c) another method chosen by the chairperson that is fair and reasonable in the circumstances.
39.2. Before a vote is taken, the chairperson must state whether any proxy votes have been received and, if so, how the proxy votes will be cast.
39.3. On a show of hands, the chairperson’s decision is conclusive evidence of the result of the vote.
39.4. The chairperson and the meeting minutes do not need to state the number or proportion of the votes recorded in favour or against on a show of hands.
40. When and how a vote in writing must be held
40.1. A vote in writing may be demanded on any resolution instead of or after a vote by a show of hands by:
a) at least five members present
b) members present with at least 5% of the votes that may be passed on the resolution on the vote in writing (worked out as at the midnight before the vote in writing is demanded), or
c) the chairperson.
40.2. A vote in writing must be taken when and how the chairperson directs, unless clause 40.3 applies.
40.3. A vote in writing must be held immediately if it is demanded under clause 40.1:
a) for the election of a chairperson under clause 31.2, or
b) to decide whether to adjourn the meeting.
40.4. A demand for a vote in writing may be withdrawn.
41. Appointment of proxy
41.1. A member with voting rights may appoint a proxy to attend and vote at a general meeting on their behalf.
41.2. A proxy must be a member.
41.3. A proxy appointed to attend and vote for a member has the same rights as the member to:
a) speak at the meeting
b) vote in a vote in writing (but only to the extent allowed by the appointment), and
c) join in to demand a vote in writing under clause 40.1.
41.4. An appointment of proxy (proxy form) must be signed by the member appointing the proxy and must contain:
a) the member’s name and address
b) the company’s name
c) the proxy’s name or the name of the office held by the proxy, and
d) the meeting(s) at which the appointment may be used.
41.5. A proxy appointment must not be standing (ongoing).
41.6. Proxy forms must be received by the company at the address stated in the notice under clause 26.5(d) or at the company’s registered address at least 48 hours before a meeting.
41.7. A proxy does not have the authority to speak and vote for a member at a meeting while the member is at the meeting.
41.8. Unless the company receives written notice before the start or resumption of a general meeting at which a proxy votes, a vote cast by the proxy is valid even if, before the proxy votes, the appointing member:
b) is mentally incapacitated
c) revokes the proxy’s appointment, or
d) revokes the authority of a representative or agent who appointed the proxy.
41.9. A proxy appointment may specify the way the proxy must vote on a particular resolution.
42. Voting by proxy
1. A proxy is not entitled to vote on a show of hands (but this does not prevent a member appointed as a proxy from voting in their capacity as a member on a show of hands).
2. When a vote in writing is held, a proxy:
a) does not need to vote, unless the proxy appointment specifies the way they must vote
b) if the way they must vote is specified on the proxy form, must vote that way, and
c) if the proxy is also a member or holds more than one proxy, may cast the votes held in different ways.
43. Number of directors
The company must have at least five and no more than nine directors.
44. Initial directors
44.1. The initial directors are the people who have agreed to act as directors and who are named as proposed directors in the application for registration of the company.
44.2. The terms of office of the initial directors will be as follows:
a) The initial directors are the people who have agreed to act as directors and who are named in Schedule 1 to this constitution.
b) The terms of office of the initial directors will commence on the incorporation of the Company and end on the date of the first annual general meeting of the Company. The initial directors will be eligible to be re-appointed.
45. Types of directors
45.1. There are two types of director who are appointed to the board:
a) Directors co-opted by the board, and/or
b) Directors elected by the members.
45.2. The Board will by ordinary resolution determine the number and type of directors to enable the company to best meet its objectives.
45.3. The number of co-opted directors at any given time is not to exceed three, unless insufficient nominations are received to fill all vacancies on the Board for elected directors, or unless the total number of directors is reduced to fewer than five (clause 48.1).
46. Co-opted directors
46.1. The Board may co-opt the number of directors approved by ordinary resolution of the Board.
46.2. A co-opted director shall serve a maximum of three years, but this does not preclude their subsequently serving as either an elected or a co-opted director.
46.3. The term of appointment of a co-opted director shall commence from the date he or she is appointed to the Board.
46.4. A co-opted director may be removed from the Board before completing his or her three year term by majority vote of the Board.
46.5. Co-opted directors shall have the usual rights and responsibilities of elected directors.
46.6. Co-opted directors may or may not be members of the company.
46.7. A person is eligible for appointment as a co-opted director of the company if they:
a) give the company their signed consent to act as a director of the company, and
b) are not ineligible to be a director under the Corporations Act or the ACNC Act.
47. Elected directors
47.1. The number of directors who may be elected by the members is the number agreed to by ordinary resolution of the Board.
47.2. At least 21 days prior to the next annual general meeting of the company:
a) at which an Elected Director is required to retire, or
b) at the commencement of which there will be a vacancy in the office of an Elected Director,
the secretary will require member nominations (which comply with this clause) for applicants to fill positions falling vacant, which must be received no less than 14 days prior to the annual general meeting.
47.3. Nominations of candidates for appointment as elected directors:
a) must be made in writing, and
b) signed by two nominating financial members of the company, and
c) must confirm they meet the eligibility requirements for elected directors as determined by the Board from time to time, and as notified in the call for nominations provided by the Secretary.
47.4. If insufficient nominations are received to fill all vacancies on the Board for elected directors:
a) the candidates nominated are taken to be elected;
b) no further nominations for elected directors will be accepted;
c) if there will be fewer than five directors after the election, the remaining vacant director position(s) may be filled by one or more co-opted directors and these directors may be appointed for a period of up to three years.
47.5. If the number of nominations received is equal to the number of vacancies to be filled, the persons nominated are taken to be elected.
47.6. If the number of nominations received exceeds the number of vacancies to be filled, a ballot is to be held.
47.7. The ballot for the election of directors is to be conducted in the period from the date which is 13 days from the next annual general meeting to the date that is one day prior to the next annual general meeting.
47.8. A person is eligible for election as a director of the company if they:
a) are a member of the company who’s category of membership deems them eligible to stand for election,
b) are nominated by two members of the company,
c) give the company their signed consent to act as a director of the company, and
d) are not ineligible to be a director under the Corporations Act or the ACNC Act.
48. Too few directors
48.1. If the number of directors is reduced to fewer than five or is less than the number required for a quorum, the continuing directors may act as the Board only:
a) to appoint directors to that minimum number,
b) to convene a meeting of members, and
c) in emergencies.
49. Casual vacancies
With respect to clause 48.1 (a), the Board may appoint a member director to fill a casual vacancy eligible for members. A director appointed under this clause holds office for the balance of the term of the person in whose stead he or she is appointed.
50. Election of chairperson
The directors must elect a director as chairperson.
51. Term of office
51.1. At each annual general meeting, other than the first annual general meeting:
a) any director appointed by the directors to fill a casual vacancy or as an additional director must retire, and
b) at least one-third of the remaining directors must retire.
51.2. The directors who must retire at each annual general meeting under clause 51.1 (b) will be the directors who have been longest in office since last being elected. Where directors were elected on the same day, the director(s) to retire will be decided by lot unless they agree otherwise.
51.3. Other than a director appointed under clause 48, a director’s term of office starts at the end of the annual general meeting at which they are elected and ends at the end of the annual general meeting at which they retire.
51.4. Each director must retire at least once every three years.
51.5. A director who retires under clause 51.4 may nominate for re-appointment or election or re-election, subject to clause 51.6.
51.6. A director who has held office for a continuous period of nine years or more may be only re-appointed or re-elected by a special resolution.
52. When a director stops being a director
52.1. A director stops being a director if they:
a) give written notice of resignation as a director to the company,
c) are removed as a director by a resolution of the members,
d) other than for co-opted directors, stop being a member of the company,
e) are absent for two consecutive directors’ meetings without written approval from the directors, or
f) become ineligible to be a director of the company under the Corporations Act or the ACNC Act.
Powers of Directors
53. Powers of directors
53.1. The directors are responsible for managing and directing the activities of the company to achieve the purposes set out in clause 9.
53.2. The directors may use all the powers of the company except for powers that, under the Corporations Act or this constitution, may only be used by members.
53.3. The directors must decide on the responsible financial management of the company including:
a) any suitable written delegations of power under clause 54, and
b) how money will be managed, such as how electronic transfers, negotiable instruments or cheques must be authorised and signed or otherwise approved.
53.4. The directors cannot remove a director elected under clauses 45.1 (b) and 47 or an auditor. Elected directors and auditors may only be removed by a members’ resolution at a general meeting.
54. Delegation of directors’ powers
54.1. The directors may delegate any of their powers and functions to a committee, a director, an employee of the company (such as a chief executive officer) or any other person, as they consider appropriate.
54.2. The delegation must be recorded in the company’s minute book.
55. Payments to directors
55.1. The company must not pay fees to a director for acting as a director.
55.2. The company may:
a) pay a director for work they do for the company, other than as a director, if the amount is no more than a reasonable fee for the work done, or
b) reimburse a director for expenses properly incurred by the director in connection with the affairs of the company.
55.3. Any payment made under clause 55.2 must be approved by the directors.
55.4. The company may pay premiums for insurance indemnifying directors, as allowed for by law (including the Corporations Act) and this constitution.
56. Execution of documents
The company may execute a document without using a common seal if the document is signed by:
a) two directors of the company, or
b) a director and the secretary.
Duties of Directors
57. Duties of directors
The directors must comply with their duties as directors under legislation and common law (judge-made law), and with the duties described in governance standard 5 of the regulations made under the ACNC Act which are to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable individual would exercise if they were a director of the company
a) to act in good faith in the best interests of the company and to further the charitable purpose(s) of the company set out in clause 9,
b) not to misuse their position as a director,
c) not to misuse information they gain in their role as a director,
d) to disclose any perceived or actual material conflicts of interest in the manner set out in clause 58,
e) to ensure that the financial affairs of the company are managed responsibly, and
f) not to allow the company to operate while it is insolvent.
58. Conflicts of interest
58.1. A director must disclose the nature and extent of any actual or perceived material conflict of interest in a matter that is being considered at a meeting of directors (or that is proposed in a circular resolution):
a) to the other directors, or
b) if all of the directors have the same conflict of interest, to the members at the next general meeting, or at an earlier time if reasonable to do so.
58.2. The disclosure of a conflict of interest by a director must be recorded in the minutes of the meeting.
58.3. Each director who has a material personal interest in a matter that is being considered at a meeting of directors (or that is proposed in a circular resolution) must not, except as provided under clause 58.4:
a) be present at the meeting while the matter is being discussed, or
b) vote on the matter.
58.4. A director may still be present and vote if:
a) their interest arises because they are a member of the company, and the other members have the same interest
b) their interest relates to an insurance contract that insures, or would insure, the director against liabilities that the director incurs as a director of the company (see clause 75)
c) their interest relates to a payment by the company under clause 75 (indemnity), or any contract relating to an indemnity that is allowed under the Corporations Act
d) the Australian Securities and Investments Commission (ASIC) makes an order allowing the director to vote on the matter, or
e) the directors who do not have a material personal interest in the matter pass a resolution that:
i. identifies the director, the nature and extent of the director’s interest in the matter and how it relates to the affairs of the company, and
ii. says that those directors are satisfied that the interest should not stop the director from voting or being present.
59. When the directors meet
The directors may decide how often, where and when they meet.
60. Calling directors’ meetings
60.1. A director may call a directors’ meeting by giving reasonable notice to all of the other directors.
60.2. A director may give notice in writing or by any other means of communication that has previously been agreed to by all of the directors.
61. Chairperson for directors’ meetings
61.1. The elected chairperson is entitled to chair directors’ meetings.
61.2. The directors at a directors’ meeting may choose a director to be the chairperson for that meeting if the elected chairperson is:
a) not present within 30 minutes after the starting time set for the meeting, or
b) present but does not want to act as chairperson of the meeting.
62. Quorum at directors’ meetings
62.1. Unless the directors determine otherwise, the quorum for a directors’ meeting is a majority (more than 50%) of directors.
62.2. A quorum must be present for the whole directors’ meeting.
63. Using technology to hold directors’ meetings
63.1. The directors may hold their meetings by using any technology (such as video or teleconferencing) that is agreed to by all of the directors.
63.2. The directors’ agreement may be a standing (ongoing) one.
63.3. A director may only withdraw their consent within a reasonable period before the meeting.
64. Passing directors’ resolutions
A directors’ resolution must be passed by a majority of the votes cast by directors present and entitled to vote on the resolution.
65. Circular resolutions of directors
65.1. The directors may pass a circular resolution without a directors’ meeting being held.
65.2. A circular resolution is passed if all the directors entitled to vote on the resolution sign or otherwise agree to the resolution in the manner set out in clause 65.3 or clause 65.4.
65.3. Each director may sign a single document setting out the resolution and containing a statement that they agree to the resolution, or
65.4. separate copies of that document, as long as the wording of the resolution is the same in each copy.
65.5. The company may send a circular resolution by email, or other electronic means, to the directors and the directors may agree to the resolution by sending a reply email to that effect, including the text of the resolution in their reply, or by responding to other electronic means.
65.6. A circular resolution is passed when the last director signs or otherwise agrees to the resolution in the manner set out in clause 65.3 or clause 65.4.
66. Appointment and role of secretary (company)
66.1. The company must have at least one secretary, who may also be a director or a staff member.
66.2. A secretary must be appointed by the directors (after giving the company their signed consent to act as secretary of the company) and may be removed by the directors.
66.3. The directors must decide the terms and conditions under which the secretary is appointed, including any remuneration.
66.4. The role of the secretary includes:
a) maintaining a register of the company’s members, and
b) maintaining the minutes and other records of general meetings (including notices of meetings), directors’ meetings and circular resolutions.
Minutes and Records
67. Minutes and records
67.1. The company must, within one month, make and keep the following records:
a) minutes of proceedings and resolutions of general meetings
b) minutes of circular resolutions of members
c) a copy of a notice of each general meeting, and
d) a copy of a members’ statement distributed to members under clause 34.
67.2. The company must, within one month, make and keep the following records:
a) minutes of proceedings and resolutions of directors’ meetings (including meetings of any committees), and
b) minutes of circular resolutions of directors.
67.3. To allow members to inspect the company’s records:
a) the company must give a member access to the records set out in clause 66.1, and
b) the directors may authorise a member to inspect other records of the company, including records referred to in clause 67.2 and clause 68.1.
67.4. The directors must ensure that minutes of a general meeting or a directors’ meeting are signed within a reasonable time after the meeting by:
a) the chairperson of the meeting, or
b) the chairperson of the next meeting.
67.5. The directors must ensure that minutes of the passing of a circular resolution (of members or directors) are signed by a director within a reasonable time after the resolution is passed.
68. Financial and related records
68.1. The company must make and keep written financial records that:
a) correctly record and explain its transactions and financial position and performance, and
b) enable true and fair financial statements to be prepared and to be audited.
68.2. The company must also keep written records that correctly record its operations.
68.3. The company must retain its records for at least 7 years.
68.4. The directors must take reasonable steps to ensure that the company‘s records are kept safe.
69.1. The directors may pass a resolution to make by-laws to give effect to this constitution.
69.2. Members and directors must comply with by-laws as if they were part of this constitution.
70. What is notice
70.1. Anything written to or from the company under any clause in this constitution is written notice and is subject to clauses 71 to 73, unless specified otherwise.
70.2. Clauses 71 to 73 do not apply to a notice of proxy under clause 40.6.
71. Notice to the company
Written notice or any communication under this constitution may be given to the company, the directors or the secretary by:
a) delivering it to the company’s registered office
b) posting it to the company’s registered office or to another address chosen by the company for notice to be provided
c) sending it to an email address or other electronic address notified by the company to the members as the company’s email address or other electronic address, or
d) sending it to the fax number notified by the company to the members as the company’s fax number, or
e) by some other electronic means used by the company, the directors or the secretary including, but not limited to electronic survey programs such as the program known as ‘SurveyMonkey’.
72. Notice to members
72.1. Written notice or any communication under this constitution may be given to a member:
a) in person
b) by posting it to, or leaving it at the address of the member in the register of members or an alternative address (if any) nominated by the member for service of notices
c) sending it to the email or other electronic address nominated by the member as an alternative address for service of notices (if any)
d) sending it to the fax number nominated by the member as an alternative address for service of notices (if any), or
e) if agreed to by the member, by notifying the member at an email or other electronic address nominated by the member, that the notice is available at a specified place or address (including an electronic address).
72.2. By some other electronic means used by the company, the directors or the secretary including, but not limited to electronic survey programs such as the program known as ‘SurveyMonkey’.
72.3. If the company does not have an address for the member, the company is not required to give notice in person.
72.4. Each member is deemed to consent to any program contemplated by clauses 72.1(e) and 72.1(f) unless the member provides written notice to the Company specifying that they no longer consent to the use of a program contemplated by clauses 72.1(e) and 72.1(f).
73. When notice is taken to be given
a) delivered in person, or left at a the recipient’s address, is taken to be given on the day it is delivered
b) sent by post, is taken to be given on the third day after it is posted with the correct payment of postage costs
c) sent by email, fax or other electronic method, is taken to be given on the business day it is sent.
74. Company’s financial year
The company‘s financial year is from 1 July to 30 June, unless the directors pass a resolution to change the financial year.
Indemnity, Insurance and Access
75.1. The company indemnifies each officer of the company out of the assets of the company, to the relevant extent, against all losses and liabilities (including costs, expenses and charges) incurred by that person as an officer of the company.
75.2. In this clause, ‘officer’ means a director or secretary and includes a director or secretary after they have ceased to hold that office.
75.3. In this clause, ‘to the relevant extent’ means:
a) to the extent that the company is not precluded by law (including the Corporations Act) from doing so, and
b) for the amount that the officer is not otherwise entitled to be indemnified and is not actually indemnified by another person (including an insurer under an insurance policy).
75.4. The indemnity is a continuing obligation and is enforceable by an officer even though that person is no longer an officer of the company.
To the extent permitted by law (including the Corporations Act), and if the directors consider it appropriate, the company may pay or agree to pay a premium for a contract insuring a person who is or has been an officer of the company against any liability incurred by the person as an officer of the company.
77. Directors’ access to documents
77.1. A director has a right of access to the financial records of the company at all reasonable times.
77.2. If the directors agree, the company must give a director or former director access to:
a) certain documents, including documents provided for or available to the directors, and
b) any other documents referred to in those documents.
78. Surplus assets not to be distributed to members
If the company is wound up, any surplus assets must not be distributed to a member or a former member of the company, unless that member or former member is a charity described in clause 79.1.
79. Distribution of surplus assets
79.1. Subject to the Corporations Act and any other applicable Act, and any court order, any surplus assets that remain after the company is wound up must be distributed to one or more charities:
a) with charitable purpose(s) similar to, or inclusive of, the purpose(s) in clause 9, and
b) which also prohibit the distribution of any surplus assets to its members to at least the same extent as the company.
79.2. If the organisation is wound up or its endorsement as a deductible gift recipient is revoked (whichever occurs first), any surplus of the following assets shall be transferred to another organisation with similar objects, which is charitable at law, to which income tax deductible gifts can be made:
a) gifts of money or property for the principal purpose of the organisation
b) contributions made in relation to an eligible fundraising event held for the principal purpose of the organisation
c) money received by the organisation because of such gifts and contributions.
79.3. The decision as to the charity or charities to be given the surplus assets must be made by a special resolution of members at or before the time of winding up. If the members do not make this decision, the company may apply to the Supreme Court to make this decision.