Ballarat ICT Limited Constitution

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Our Ref: CAD 5/54486

Introduction

This document is the Constitution for a not for profit company limited by Guarantee incorporated under the Corporations Act 2001 of the Commonwealth of Australia (“Act”) and contains a number of Rules which sets out how the Company is to be managed.

The Rules incorporate or amend or replace the replaceable rules in the Act to assist Members and Directors of the Company to manage the affairs of the Company efficiently.

Directors and Members should see the Rules contained in this Constitution as Rules regulating how they must conduct the affairs of their Company. Where there is any doubt as to the management of the Company, the powers of Directors or Members to make a decision or take a particular act reference should be made to the Corporations Act 2001 and advice sought from the Company’s professional advisers.

Corporations Act 2001

CONSTITUTION OF BALLARAT ICT LTD ACN 096 427 208

Public Company Limited by Guarantee

INTERPRETATION
1. Definitions
  
  In this Constitution unless there be something in the subject or context inconsistent then the following words and expressions shall have the following meanings:-
  
  “The Act” means the Corporations Act 2001 in force from time to time and any reference to a section of the Act or a section of the law shall mean a reference to the Corporations Act 2001 and the particular section of that Act.
  
  “The Company” means Ballarat ICT Ltd.
  
  “Directors”and “Board” means all or any number of the Directors for the time being of the Company acting in accordance with these Rules.
  
  “Guarantee Amount” means $1.00.
  
  “The Law” means the “Corporations Act 2001” and any statutory modification amendment or re-enactment thereof from time to time in force.
  
  “Member” means any person for the time being recorded in the Register as a Member.
  
  “Paid” means paid or credited as paid.
  
  “Register” means the register of Members, Directors and other information required by the Act.
  
  “Rules” shall mean the Rules forming part of the Company’s Constitution as originally adopted or as from time to time added to or amended.
  
  “The Seal” or “The Common Seal” shall mean the common seal of the Company (if any).
  
  “Secretary” means and includes the Secretary and any assistant or acting Secretary and any other person for the time being appointed to perform whether alone or in addition to any other person or persons the duties of a Secretary of the Company.
  
  “Signature” shall mean the impression of a mark by hand facsimile mechanical electronic or other means which is properly authorised by the person purported to have signed the document.
  
  “Signed” shall mean the result of a signature produced by any means defined above.
  
  “Special resolution” shall have the meaning assigning to that expression by the Act.
  
  “In writing” and “written” shall include printing and lithography and other modes of reproducing or representing words in a visible form and shall include electronic means provided the same can be recorded in a permanent form.
2. Interpretation
  
  In these Rules unless a different intention appears:-
  1. words importing a singular number only shall include plural number and vice versa;
  2. words importing one gender only shall include the other gender;
  3. words importing persons shall include companies and corporations.
  4. any heading or marginal note inserted in these Rules is included for convenience only and shall not affect the construction of these Rules.
3. Replacement Rules
  
  Each of the replaceable rules contained in the Act are not excluded or displaced and apply to the Company except to the extent that the replaceable rules are excluded displaced or amended by the provisions of this Constitution.
NATURE AND OBLIGATIONS OF COMPANY
1. 1. The Name of the Company is Ballarat ICT Ltd.
  2. The Company is a public company limited by guarantee.
  3. The Directors must cause proper accounting and other records in relation to the Company to be kept in accordance with the Act.
  4. The accounting records and other documents of the Company shall be open to the inspection of Members but subject to any reasonable restrictions imposed by the Board in relation to the time and manner of inspection in accordance with these Rules for the time being in force.
  5. Once at least in every year the accounts of the Company shall be examined by one or more properly qualified Auditor or Auditors who shall report to the Members in accordance with the provisions of the Act.
OBJECTS
1. The objects of the Company are:
  1. To lead the implementation Ballarat ICT 2030, regularly report on progress and contribute to the development and implementation of similar strategies and plans in the future.
  2. To foster regional development and represent the interest of the Ballarat ICT community.
  3. To promote a business, research, training and community environment that encourages new investment, fosters business start-ups, encourages leading edge research and supports the rapid adoption and effective use of ICT across all sectors of the business and wider community.
  4. To bring related agencies, organisations and individuals together to work on ICT strategies and projects across all sectors of the business and wider Ballarat community.
  5. To provide a ‘collective voice’ to positively influence government innovation and technology policies, research and investment.
  6. To strengthen Ballarat’s capabilities and reputation as a leading ICT centre.
  7. To operate in a manner with the objective of fostering an autonomous, respected and sustainable manner.
POWERS
1. Solely for the purpose of carrying out the objects of the Company and not otherwise the Company has power:
  1. To hold or arrange competitions and provide or contribute towards the provision of prizes awards and distinctions in connection therewith. Provided that no Member of the Company shall receive any prize award or distinction of monetary value except as a successful competitor at any competition held or promoted by the Company.
  2. To subscribe to become a Member of and co-operate with or amalgamate with any other association or organisation whether incorporated or not whose objects are similar to those of the Company. Provided that the Company shall not subscribe to or support with its funds or amalgamate with any association or organisation which does not prohibit the distribution of its income and property among its members to an extent at least as great as that imposed on the Company by Rule 5 of this Constitution.
  3. To buy sell and deal in all kinds of goods and services required by Members of the Company or persons frequenting the Company’s premises.
  4. To purchase take on lease or in exchange hire and otherwise acquire any lands building easement or property real and personal and any rights privileges which may be requisite for the purposes of or capable of being conveniently used in connection with any of the objects of the Company. Provided that in case the Company shall take or hold any property which may be subject to any trusts the Company shall only deal with the same in such manner as is allowed by law having regard to such trusts.
  5. To enter into any arrangements with any Government or authority Commonwealth, State, municipal, local or otherwise that may seem conducive to the Company’s objects or any of them and to obtain from any such Government or authority any rights, privileges and concessions which the Company may think it desirable to obtain; AND to carry out, exercise and comply with any such arrangements, rights, privileges and concessions.
  6. To appoint, employ, remove or suspend such managers, clerks, secretaries, servants, employees and other persons as may be necessary or convenient for the purpose of the Company.
  7. To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit employees or past employees of the Company or the dependants or connections of any such persons, AND to grant pensions and allowances; AND to make payments towards insurance and superannuation; AND to subscribe or guarantee money for charitable or benevolent objects or for any public general or useful object.
  8. To construct, improve, maintain, develop, work, manage, carry out, alter or control any houses, buildings, grounds works or conveniences which may seem calculated directly or indirectly to advance the Company’s interests and to contribute, to subsidise or otherwise assist and take part in the construction, improvement, maintenance, development, working management, carrying out, alteration or control thereof.
  9. To invest and deal with money of the Company not immediately required in such manner as may be permitted by law for the investment of trust funds.
  10. To borrow or raise or secure the payment of money in such manner as the Company may think fit and to secure the same or repayment or performance of any debt, liability, contract, guarantee or other engagement incurred or to be entered into by the Company in any way in particular by the issue of debentures perpetual or otherwise charged upon all or any of the Company’s property (both present and future) and to purchase redeem or pay of such securities.
  11. To make, draw, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading and other negotiable or transferable instruments.
  12. To sell, improve, manage, develop, exchange, lease, dispose of, turn to, account or otherwise deal with all or any part of the property and rights of the Company.
  13. To take or hold mortgages, liens and charges to secure payment of the purchase price or any unpaid balance of the purchase price of any part of the Company’s property of whatsoever kind sold by the Company or any money due to the Company from purchases and others.
  14. To take any gift of property whether subject to any special trust or not for any one or more of the objects of the Company but subject always to any limitation in these Rules.
  15. To take such steps by personal or written appeals, public meetings or otherwise as may from time to time be deemed expedient for the purpose of procuring contributions to the funds of the Company in the shape of donations, annual subscriptions or otherwise.
  16. To print and publish any newspapers periodicals, books or leaflets that the Company may think desirable for the promotion of its objects.
  17. To purchase and otherwise acquire and undertake all or any part of the property, assets, liabilities and engagements of any one or more of the companies, institutions, societies or associations with which the Company is authorised to amalgamate.
  18. To transfer all or any part of the property, assets, liabilities and engagements of the Company to any one or more of the companies, institutions, societies or associations with which the Company is authorised to amalgamate.
  19. To make donations for patriotic or charitable purposes.
  20. To provide a useful and cost effective range of services, facilities and benefits to Members.
  21. To employ and remunerate employees who may be Members.
  22. To exercise any persons that the Company has by having the legal capacity of a natural person, including performing any act or function which it is authorised or required to do by any law.
NO PROFITS OR PAYMENTS TO MEMBERS
1. The income and property of the Company from wherever derived must be applied solely towards promoting the Company as provided in these Rules and no portion thereof shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise to the Members of the Company.
2. The Company must not distribute, pay or transfer to the Members directly or indirectly by way of dividend, bonus or otherwise any of the property or income of the Company PROVIDED that nothing shall prevent the payment in good faith of remuneration to any officers or servants of the Company or to any Member of the company in return for any services actually rendered to the Company or for goods supplied in the ordinary and usual way of business nor prevent the payment of interest at reasonable and proper commercial rates on money borrowed from any Members of the Company or reasonable and proper rent for premises demised or let by any Member of the Company.
3. Notwithstanding Rule 5.2 no remuneration will be paid by the Company to any Director except reimbursement of travelling and other expenses properly incurred concerning the Company’s business.
4. If upon the winding-up or dissolution of the Company there remains after satisfaction of all its debts and liabilities any property whatsoever it shall not be paid to nor distributed among the Members of the Company but shall be given or transferred to some other not for profit institution, organisation or Company whose Memorandum of Association or constitution shall prohibit the distribution of its or their income and property among its or their Members to an extent at least as great as is imposed on the Company under these rules. Such not for profit institution, organisation or Company to be determined by the Members of the Company at or before the time of the dissolution and in default thereof by application to a Court of competent jurisdiction for determination.
MEMBERS LIABILITY AND GUARANTEE AMOUNT
1. The liability of the Members is limited.
2. Every Member of the Company undertakes to contribute to the property of the Company in the event of the same being wound up while he or she is a Member or within one year after he or she ceases to be a Member for payment of the debts and liabilities of the Company (contracted before he or she ceases to be a Member) and of the costs charges and expenses of winding up and for the adjustment of the rights of the contributories among themselves such amounts as may be required not exceeding the Guarantee Amount.
MEMBERSHIP
1. A record of the names, addresses, and email addresses and telephone numbers (if any) of the Members of the Company are to be kept in the Company Register.
2. If the whole of the funds and other assets of an unincorporated Association become the absolute property of the Company after its registration then every person who at the date of registration of the Company is a Member of the unincorporated Association and who within 60 days of the date of registration agrees in writing to become a Member of the Company shall be admitted by the Board to membership of the Company.
  
  Every Member of the Company who prior to agreeing to become a Member of the Company has paid a subscription due as a Member of the unincorporated Association shall not be liable to pay any further sum by way of annual subscription to the Company for the period prior to the date that that subscription would have expired.
3. Every applicant for membership of the Company (other than the persons who obtained registration of the Company and Members of the unincorporated Association referred to in rule 7.2) shall be proposed by one and seconded by another Member of the Company to both of whom the applicant shall be personally known.
4. The application for membership shall be made in writing signed by the applicant and the proposer and seconder in such form as the Board from time to time prescribes (and available on request from the Board) and each application will include payment of the entrance fee and the first annual subscription.
5. At the next meeting of the Board after the receipt of any application for membership such application shall be considered by the Board which shall thereupon determine upon the admission or rejection of the applicant. In no case shall the Board be required to give any reason for the rejection of an applicant. If the Board rejects an applicant, any annual subscription or entrance fee paid by the applicant will be reimbursed to the applicant.
6. When an applicant has been accepted for membership the Secretary shall forthwith send to the applicant written advice of acceptance at which time the applicant shall become a Member of the Company. The written notice of acceptance will contain a reimbursement for part of the annual subscription on a pro rata basis where the applicant has been accepted part way through a financial year.
7. The entrance fee and annual subscription payable by Members of the Company shall be such as the Directors shall from time to time prescribe.
8. All annual subscriptions shall become due and payable in advance on the 1st day of July in every year.
CESSATION OF MEMBERSHIP
1. If the subscription of a Member remains unpaid for a period of two calendar months after it becomes due then the Secretary may send a notice of the default to the Member. If the Member does not pay the overdue subscription within 14 days from the date of service of the Notice (“End Date”) the Member will be deemed to have resigned on the End Date.
2. A Member may at any time by giving notice in writing to the Secretary resign his or her membership of the Company but shall continue to be liable for any annual subscription and all arrears due and unpaid at the date of resignation and for all other monies due by him or her to the Company and in addition for the Guarantee Amount for which he is liable as a Member of the Company under clause 6.2.
3. If any Member shall wilfully refuse or neglect to comply with the provisions of these Rules or shall be guilty of any conduct which in the opinion of the Board is prejudicial to the interests of the Company the Board shall have power by resolution to censure, fine, suspend or expel the Member from the Company.
  
  PROVIDED that at least two weeks before the meeting of the Board at which such a resolution is passed the Member shall have had notice of such meeting and of what is alleged against him or her and of the intended resolution and that he or she shall at such meeting and before the passing of such resolution have had an opportunity of giving orally or in writing any explanation he or she may think fit AND PROVIDED FURTHER that any such Member may by notice in writing lodged with the Secretary at least twenty-four hours before the time for holding the meeting at which the resolution is to be considered by the Board elect to have the question dealt with by the Company in general meeting. In that event a general meeting of the Company shall be called for that purpose and if at the meeting such a resolution be passed by a majority of two-thirds of those present and voting (such vote to be taken by ballot) the Member concerned shall be punished accordingly and in the case of a resolution for expulsion the Member shall be expelled.
GENERAL MEETINGS
1. An Annual General Meeting of the Company shall be held in accordance with the provisions of the Law.
2. Any Director may whenever he or she thinks fit convene a general meeting. General meetings shall also be convened on such requisition or in default may be convened by such requisition as provided by the Law.
3. Subject to the provisions of the Law relating to special resolutions and agreements for shorter notice twenty one days notice at the least (exclusive of the day on which the notice is served or deemed to be served and exclusive of the day for which notice is given) specifying the place, the day and the hour of meeting and in the case of special business the general nature of that business shall be given to such persons as are entitled to receive such notices from the Company.
4. For the purpose of rule 9.3 all business shall be special that is transacted at a general meeting and also all that is transacted at an Annual General Meeting with the exception of the consideration of the accounts balance sheets and the reports of the Directors and Auditors the election of office bearers and other Directors in the place of those retiring and the appointment of the Auditors, if necessary.
PRECEEDINGS AT GENERAL MEETING
1. No business shall be transacted at any general meeting unless quorum of Members is present at the time when the meeting proceeds to business. Save as herein otherwise provided six Members present in person shall be a quorum. For the purpose of this rule “Member” includes a person attending as a proxy or as representing an organisation which is a Member.
2. If 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 shall be dissolved – in any other case it shall stand adjourned to the date that is one calendar month after the date appointed for the meeting at the same time and place or such other day and at such other time and place as the Board may determine. If 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) shall be a quorum.
3. The Chairperson of the Board shall preside as chairperson at every general meeting of the Company, or if there is no Chairperson, or if the Chairperson is not present within fifteen minutes after the time appointed for the holding of the meeting or is unwilling to act, then the Vice Chair of the Board shall preside as chairperson at the meeting, or if there is no Vice Chair, or if the Vice Chair is not present within fifteen minutes after the time appointed for the holding of the meeting or is unwilling to act, then the Members present shall elect one of their Members to be chairperson of the meeting.
4. The Chairperson may with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for thirty days or more notice of the adjourned meeting shall be given as in the case of an original meeting.
5. At any general meeting a resolution put to the note of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded.
  1. by the Chairperson; or
  2. by at least three Members present in person or by proxy.
  3. Unless a poll is demanded a declaration by the Chairperson 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 book containing the minutes of the proceedings of the Company shall be conclusive evidence of the fact without proof of the number of proportion of the votes recorded in favour of or against the resolution. The demand for a poll may be withdrawn.
6. If a poll is duly demanded it shall be taken in such a manner and either at once or after an interval or adjournment or otherwise as the Chairperson directs and the result of the poll shall be the resolution of the meeting at which the poll was demanded but a poll demanded on the election of a Chairperson or on a question of adjournment shall be taken forthwith.
7. In the case of an equality of votes whether on a show of hands or on poll the Chairperson of the meeting at which the show of hands takes place or at which the poll is demanded shall be entitled to a second or casting vote.
8. A Member may vote in person or by proxy or by attorney and a Member present in person or by proxy or by attorney or other duly authorised representative shall have one vote.
9. A Member who is of unsound mind or whose person or estate is liable to be dealt with in any way under the protective jurisdiction may vote whether on a show of hands or on a poll by his or her committee or by his or her trustee or by his or her administrator or by such other person as properly has the management of his or her estate and any such committee, trustee or other person may vote by proxy or attorney.
10. No Member shall be entitled to vote at any general meeting if his or her annual subscription shall be more than one month in arrears at the date of the meeting.
11. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his or her attorney duly authorised in writing or if the appointor is a corporation either under seal or under the hand of any officer or attorney duly authorised. The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. A Member shall be entitled to instruct his or her proxy to vote in favour of or against any proposed resolutions. Unless otherwise instructed the proxy may vote as he or she thinks fit.
12. The instrument appointing a proxy may be in any form that makes it clear that a Proxy has been appointed provided that it shall be signed by the Member making the appointment and contain at least the following information:-
  1. the Member’s name and address;
  2. the Company’s name;
  3. the proxy’s name and address;
  4. the meeting at which the appointment may be used;
  5. if the Member wishes to make a specific direction to the proxy as to how the proxy must vote on a particular matter then the manner in which the vote must be exercised.
13. A proxy may be a standing proxy and shall continue until the Company receives notification in writing of the termination of the proxy.
14. A later appointment revokes an earlier appointment if both appointments can only be validly exercised at the particular meeting.
15. A proxy shall only be valid for a meeting if, at least 48 hours before a meeting, the Company has received the proxy’s appointment, and, if the appointment is signed by the appointer’s attorney, the authority under which the appointment was signed or a certified copy of the authority.
16. The appointment of proxy, authority or certified copy of the authority may be given to the Company by:-
  1. delivering the same to the Company’s registered office; or
  2. faxing the same to the facsimile number at the Company’s registered office or sending it to the electronic address at the registered office of the Company or at the place, to the facsimile number or to the electronic address specified for the purpose in the notice of meeting.
17. An appointment of a proxy shall be of no effect if the Company receives either or both the appointment or authority or certified copy authority at a facsimile number or electronic address and any requirement concerning proxies in the notice of meeting that requires the transmission to be varied in a specified way or the proxy to produce the appointment and authority or certified copy of the authority at the meeting is not complied with.
18. A proxy who is not entitled to vote on a resolution as a Member may vote as a proxy for another Member who can vote as long as the appointment specified the way a person is to vote on the resolution and the proxy votes that way.
19. Unless the Company has received written notice of the matter before the start or resumption of the meeting at which a proxy votes, a vote cast by the proxy will be valid even if prior to the proxy voting: -
  1. the Member having appointed the proxy dies; or
  2. the Member having appointed the proxy is mentally incapacitated; or
  3. the Member having appointed the proxy revokes the proxy’s appointment; or
  4. the Member having appointed the proxy revokes the authority under which the proxy was appointed by a third party.
20. A body corporate may appoint an individual as a representative to exercise all or any of the powers the body corporate may exercise:-
  1. at meetings of the Company’s Members; or
  2. at meetings of creditors or debenture holders; or
  3. in relation to any resolution to be passed without a meeting.
    
    The appointment may be for particular meeting or for a particular period of time; or may be a standing appointment.
21. The appointment may set out any restrictions on the representatives power. If the appointment is to be by reference to a position held, the appointment must identify the position.
22. A body corporate may appoint more than one representative but only one representative may exercise the body’s powers at any one time.
23. Unless otherwise specified in the appointment the representative may exercise on the body corporate’s behalf all of the powers that the body corporate could exercise at a meeting or in voting on a resolution.
THE BOARD OF DIRECTORS
1. The office-bearers of the Company shall consist of a Chairperson, Vice Chairperson and Treasurer all of whom shall be Members of the Company.
2. The persons recorded in the Company’s Register as Directors from time to time shall constitute the Board of Directors (“Board”).
3. The Board shall consist of the office-bearers and up to 7 other Directors of the Company all of whom shall be elected as herein provided. It shall not be necessary for a casual or other vacancy to be filled.
4. At the Annual General Meeting of the Company the Member-elected Directors shall be elected from among the Members of the Company and at meetings of the Board the Board-elected Directors shall be elected from among the Members of the Company, and all such Directors shall hold office for two years from the date elected to office subject to Rules 11.7, 11.8 and 11.11 (“Tenure”), after which time they shall retire but they shall be eligible for re-election. The Directors of the Board from time to time will elect the office-bearers.
5. The election of Directors shall take place in the following manner:-
  1. The Members of the Company will be entitled to elect up to 4 Members as Directors of the Company (“Member-elected Directors”). Member-elected Directors will be elected at the Annual General Meeting of the Company as follows:
    1. Any two Members of the Company shall be at liberty to nominate any other Member to serve as a Member-elected Director.
    2. The nomination which shall be in writing and signed by the Member and the proposer and seconder and shall be lodged with the Secretary at least fourteen days before the Annual General Meeting at which the election is to take place.
    3. A list of candidates’ names in alphabetical order with the proposers’ and seconders’ names shall be posted in a conspicuous place in the registered office of the Company or online on the Company’s website for at least seven days immediately preceding the Annual General Meeting.
    4. Balloting lists shall be prepared (if necessary) containing the names of the candidates only in alphabetical order. Each Member present at the Annual General Meeting shall be entitled to vote for any number of such candidates not exceeding the number of vacancies.
    5. In case there shall not be a sufficient number of candidates nominated the Board may fill up the remaining vacancy or vacancies.
  2. The Directors of the Company from time to time will be entitled to elect up to 4 Members as Directors of the Company (“Board-elected Directors”). Board-elected Directors will be elected by ordinary resolution of the Directors at a meeting of the Board and shall, as far as reasonably practicable, be appointed from Members with applicable industry and skills based experience in the opinion of the Board.
  3. The Chief Executive Officer of the City of Ballarat, or his or her nominee, will be entitled to elect 1 Member as a Director of the Company.
  4. The Vice Chancellor of the University of Ballarat, or his or her nominee, will be entitled to elect 1 Member as a Director of the Company.
6. The Company may from time to time by resolution passed at a general meeting increase or reduce the number of office-bearers or other members of the Board, however the total number of office-bearers and other Directors shall not at any time exceed the number fixed in accordance with Rules 11.1 and 11.3.
7. The Board shall have the power at any time and from time to time to appoint any Member of the Company as a Director either to fill a casual or other vacancy arising due to Rule 11.5(a)(v) or 11.9 or as an addition to the existing office-bearers or other Directors (excluding a vacancy in relation to a Director appointed in accordance with Rules 11.5 (c) or (d) which will remain vacant until another Director is appointed by the persons authorised under Rules 11.5(c) or (d)). Any office-bearer or other Director so appointed to replace a Member-appointed Director that has vacated his or her position or retired (“Vacating Director”) shall hold office only until the next following Annual General Meeting, but the appointment to replace the Vacating Director then made by the Members at that Annual General Meeting will expire when the Tenure of that Vacating Director would have ended if he or she had not retired or vacated his or her position.
8. The Company may by ordinary resolution of which notice pursuant to the Act has been given remove any office-bearer or other Director before the expiration of his or her period of office (“Removed Director”). If that office-bearer or Director is a Member-appointed Director the Company may by an ordinary resolution appoint another person in his or her stead, and the person so appointed shall hold office only until the next following Annual General Meeting, but the appointment to replace the Removed Director then made by the Members at that Annual General Meeting will expire when the Tenure of that Removed Director would have expired if he or she had not been removed by the Company before the end of his or her Tenure. However the Company may not appoint a Director that is a Director appointed under Rules 11.5(b), (c) or (d).
9. The position of a person as a Director and that person’s office as a Director shall cease and become vacant if:-
  1. he or she dies; or
  2. resigns by notice in writing; or
  3. he or she is disqualified from acting as Director as a consequence of any provision of the Act; or
  4. he or she becomes mentally ill or his or her affairs comes under the protective jurisdiction; or
  5. he or she becomes bankrupt or makes an assignment to or composition with his or her creditors; or
  6. in the case of Rules 11.5(c) or (d) he or she ceases employment with the City of Ballarat or the University of Ballarat.
10. 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.
11. On the date this Constitution was amended and adopted by the Company, (“Effective Date”) and for a period of two years thereafter (“Transition Period”), the Rules in this Constitution in relation to:
  1. the appointment of Member-elected Directors and Board-elected Directors; and
  2. the Tenure of Directors,
    
    will not apply for the purpose of a transition period to enable the Board to:
    1. allocated staggered Tenures to each of those Directors who are Directors of the Company on the Effective Date (“Transition Directors”);
    2. determine which of the Transition Directors will be deemed to be Member-appointed Directors; and
    3. determine which of the Transition Directors will be deemed to be Board-elected Directors,
      
      during the Transition Period, and accordingly the Members will not be entitled to appoint any Member-elected Directors until the end of the Tenure of the Transition Directors deemed by the Board to be Member-elected Directors.
POWERS AND DUTIES OF THE BOARD
1. The business of the Company shall be managed in accordance with the Act and these Rules by the Board who may pay all expenses incurred in promoting and registering the Company and may exercise all the powers of the Company that are not required by the Law or these Rules to be exercised by the Company in general meeting. No resolution passed by the Company in general meeting shall invalidate any prior act of the Board which would have been valid had that resolution not been passed.
2. 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 and other securities whether outright or as security for any debt liability or obligation of the Company.
3. 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 Directors or in such other manner as the Board from time to time determines.
4. The Board shall cause minutes to be made:-
  1. of all appointments of officers and employees; and
  2. of the names of the Directors present at all meetings of the Company and of the Board; and
  3. of all proceedings at all meetings of the Company of the Board.
    
    Such minutes shall be signed by the chairperson of the meeting at which the proceedings were held or by the chairperson of the next succeeding meeting.
5. The Board must appoint a Secretary or Secretaries and may at any time terminate the appointment or appointments. The Secretary may carry out any act required to be carried out by the Secretary under these Rules or the Act.
PROCEEDINGS OF THE BOARD OF DIRECTORS
1. The Board may meet together for the dispatch of business adjourn and otherwise regulate its meetings as it thinks fit. A Director may at any time and the person performing the duties of Secretary to the Board on the requisition of a Director convene a meeting of the Board.
2. Subject to these Rules 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 Directors. In case of an equality of votes the chairperson of the meeting shall have a second or casting vote.
3. The quorum necessary for the transaction of the business of the Board shall be a majority of the total number of Directors of such greater number as may be fixed by the Directors.
4. The continuing Directors may act notwithstanding any vacancy in the Board, however if and so long as their number is reduced below the number fixed as the necessary quorum of the Board, the continuing Director or Directors may act for the purpose of increasing the number of Directors to the quorum, or for the purposes of convening a general meeting of the Company, but for no other purpose.
5. The chairperson shall preside as chairperson at every meeting of the Board or if there is no chairperson or if at any meeting he or she is not present within fifteen minutes after the time appointed for holding the meeting or if being present is unwilling to preside the Vice chairperson shall be chairperson or if the Vice chairperson is not present at the meeting then the Directors may choose one of their number to be chairperson of the meeting.
6. 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 the Law) to one or more committees consisting of such Member or Members of the Company as the Board thinks fit. Any committee so formed shall conform to any regulation that may be given by the Board and subject thereto shall have power to co-opt any Member or Members of the Company. All Members of such committees shall have one vote.
7. The Board may appoint one or more advisory committees as the Board thinks fit. Such advisory committees shall act in advisory capacity only. They shall conform to any regulations that may be given by the Board and shall have power to co-opt any Member or Members of the Company. All members of such advisory committees shall have one vote in relation to the advisory committee’s determination, however the decision of the advisory committee will be advising only in nature and will not bind the Company or the Board.
8. Every committee or advisory committee may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the members of the committee present and in the case of an equality of votes the chairperson shall have a second or casting vote, however the decision of the advisory committee will be advisory only in nature and will not bind the Company or the Board.
9. 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 of 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.
10. A resolution in writing signed by all Directors in Australia for the time being entitled to received 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 or more Directors.
11. A Secretary shall in accordance with the Law be appointed by the Board for such term and upon such conditions as it thinks fit and any Secretary so appointed may be removed by it. Nothing herein shall prevent the Board from appointing a Member of the Company, or a Director as Secretary.
SEAL
1. Unless the Directors make a determination under Rule 14.5, the Company shall have a common seal.
2. The Directors shall provide for the safe custody of the seal and shall only use the seal by the authority of the Directors or of a committee of the Directors authorised by the Directors to authorise the use of the seal.
3. The affixing of the seal shall be sufficient and shall bind the Company if it shall be affixed in the presence of one Director who shall sign every instrument to which the seal is affixed and every such instrument shall be counter-signed by another Director or the Secretary or some other person appointed by the Directors.
4. A Director may affix the seal to or sign any instrument and the Secretary may counter-sign any instrument on behalf of the Company notwithstanding that the Director and Secretary may be in any way interested in the transaction.
5. The Directors may at any time determine that the Company shall not have a common seal.
6. If the Directors determine that the Company shall not have a common seal then a document shall be validly executed and shall be binding upon the Company if it is signed by any two Directors or by one Director and the Secretary (who may not be the same person).
7. A Director and the Secretary may sign any instrument binding the Company notwithstanding that the Director and the Secretary may be in any way interested in the transaction.
ACCOUNTS
1. 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 Auditors report as required by the Law to every Member which may at the option of the Board be published online or in electronic form. The Board shall cause to be made out and laid before each Annual General Meeting 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 months before the date of the meeting.
2. 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.
AUDIT
1. A properly qualified Auditor or Auditors shall be appointed and his her or their duties regulated in accordance with the Law.
NOTICES
1. A notice may be given by the Company to any Member either personally or by sending it by post to the Member at the Member’s registered office or the address if any supplied by the Member to the Company for giving of notices to the Member or to any address given by the Member to the Company for the delivery of facsimile messages or messages transmitted by electronic or like means. Where 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 and 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 hours after the time of transmission.
2. 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 local newspaper circulating in the local Ballarat area, unless required otherwise by the Act or other law.
3. Notice of every General Meeting shall be given in any manner authorised only to:-
  1. every Member except those Members for whom the Company has no registered address or an address for the giving of notices; and
  2. the Auditor or Auditors for the time being of the Company.
ACCIDENTAL OMISSION TO GIVE NOTICE
1. The accidental omission to give notice of a General Meeting to or the non-receipt of the notice by any person entitled to receive notice of a General Meeting under these articles does not invalidate the proceedings or any resolution passed at the meeting.
INDEMNITY
1. Subject to the provision of the Act every Director Secretary Manager or officer of the Company or any person employed by the Company as Auditor shall be indemnified out of the funds of the Company against all liability incurred by such person as a Director Manager Officer or Auditor 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 Act in which relief is granted to the person by a court.
2. Subject to the Act no Director Auditor or other officer of the Company shall be liable for the acts receipts neglect or defaults of any other Director or officer or for joining in any receipt or other act for conformity or for any loss or expense happening to the 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 tortious 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 negligence default breach of duty breach of trust or dishonesty.
3. 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 an Officer of the Company against liability:-
  1. incurred by the person in his or her capacity as an 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 contravention of sections 182 or 183 of the Act; or
  2. for costs and expenses incurred by that person in defending proceedings, whatever their outcome.
MEDIATION
1. In the event that a dispute shall arise between the Directors or between the Directors and a Member or between the Members or between the Company and a Member concerning the affairs of the Company, the parties must attempt to resolve the dispute by mediation as follows:
  1. Either party may start mediation by serving a mediation notice on the other.
  2. The notice must state that a dispute has arisen and identify what is in dispute.
  3. The parties must jointly appoint a Mediator. If the parties fail to agree on the appointment within 7 days of service of the notice, a Mediator will be appointed by the Secretary for the time being of the Law Institute or Law Society (as the case requires) of the State or Territory in which the Company has its registered office upon the application of either party.
  4. The parties must observe the instructions of the Mediator about the conduct of the mediation execute any written agreements that the Mediator may reasonably ask them to execute and make a genuine and determined effort to resolve the dispute.
  5. If the dispute is not resolved within 14 days after the Mediator is appointed or any other time that the parties are agreed to in writing, the mediation ceases.
  6. The Directors and the Members must as far as is reasonably practicable and provided to do so is not in breach of the Law maintain the status quo concerning the affairs of the Company whilst the mediation process is taking place.
  7. No request for arbitration may be made nor any application made to a court of law except in the case that the status quo concerning the affairs of the Company is not maintained until such time as the parties have attending a mediation meeting.
  8. Each party must pay an equal share of the cost of mediation to the Mediator.
  9. If the dispute is resolved, each party must sign the terms of the agreement and the terms are binding on the parties.
  10. The mediation procedure is confidential and written statements prepared by the Mediator or for a party and any discussion between the parties and between the parties and the Mediator before or during the mediation procedure cannot be used in any legal proceedings. The Mediator shall destroy any notes made during the mediation at the end of the mediation.
INCONSISTENCY WITH CORPORATIONS ACT
1. In the event that any of these Rules shall be inconsistent with or in breach of any of the provisions of the Act then these Rules shall be read down to the extent that they shall comply with the Act and any Rules that are inconsistent with or in breach of the provisions of the Act shall be deemed to be struck out and shall not form part of these Rules.
2. In the event that the provisions of the 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 these Rules then the Directors may but shall not be obliged so to do (unless the Act 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 the Act.