Constitution of Lean Construction Australia & New Zealand Ltd
A company limited by guarantee
1 Name of the company
2 Type of company
3 Limited liability of members
4 The guarantee
Purposes and powers
9 Amending the constitution
10 Membership and register of members
11 Who can be a member
12 How to apply to become a member
13 Directors decide whether to approve membership
14 When a person becomes a member
15 When a person stops being a member
Dispute resolution and disciplinary procedures
16 Dispute resolution
General meetings of members
18 General meetings called by directors
19 General meetings called by members
20 Annual general meeting
21 Notice of general meetings
22 Quorum at general meetings
23 Auditor’s right to attend meetings
24 Representatives of members
25 Using technology to hold meetings
26 Chairperson for general meetings
27 Role of the chairperson
28 Adjournment of meetings
Members’ resolutions and statements
29 Members’ resolutions and statements
30 Company must give notice of proposed resolution or distribute statement
31 Circular resolutions of members
Voting at general meetings
32 How many votes a member has
33 Challenge to member’s right to vote
34 How voting is carried out
35 When and how a vote in writing must be held
36 Appointment of proxy
37 Voting by proxy
38 Number of directors
39 Election and appointment of directors
40 Election of chairperson
41 Term of office
42 When a director stops being a director
Powers of directors
43 Powers of directors
44 Delegation of directors’ powers
45 Payments to directors
46 Execution of Documents
Duties of directors
47 Duties of directors
48 Conflicts of interest
49 When the directors meet
50 Calling directors’ meetings
51 Chairperson for directors meetings
52 Quorum at directors’ meetings
53 Using technology to hold directors’ meetings
54 Passing directors’ resolutions
55 Circular resolutions of directors
56 Appointment and role of secretary
Minutes and records
57 Minutes and records
58 Financial and related records
60 What is notice
61 Notice to the company
62 Notice to members
63 When notice is taken to be given
64 Company’s financial year
Audits and Accounts
65 Audits and Accounts
Indemnity, insurance and access
68 Directors’ access to documents
69 Surplus assets not to be distributed to members
70 Distribution of surplus assets
Definitions and interpretation
72 Reading this constitution with the Corporations Act
The name of the company is LEAN CONSTRUCTION AUSTRALIA NEW ZEALAND LTD (the company).
2. Type of company
The company is a not-for-profit public company limited by guarantee.
3. Limited liability of members
The liability of members is limited to the amount of the guarantee in clause 4.
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.
In this constitution, words and phrases have the meaning set out in clauses 71 and 73.
Purposes and powers
The company is established as a not for profit organisation, with the purpose of advancing the knowledge, capability and application of Lean and Continuous Improvement principles, methods and collaborations across the Building, Construction and Engineering industries, education providers, peak bodies, government and other related associations in pursuit of increased value delivery, resource utilisation, reliability and safety (“Field”)
The particular objects for which the company is established are to:
(a) create a network of resources and collaborators in the Field with the capability, through research, education and facilitation of projects to improve economic, environmental and social factors within the company’s operating areas;
(b) build practical capability in the Field to drive new projects, entities and partnerships through training, coaching, mentoring and the facilitation of on the job learning for the benefit of the company, collaborators and benefactors in the Field;
(c) ensure members, collaborators and other participants with their differing disciplines and backgrounds will, through their participation in projects and capability building activities, add value to each other so that the performance of the company will be greater than that of each member and other participants acting independently;
(d) promote a managed and cooperative approach to research, education and application in the Field to maximise the benefits from those activities;
(e) as an ancillary and supportive purpose, to utilise research outcomes of the company’s activities in such a manner as to ensure that the maximum benefit accrues to Australia and New Zealand and other eventual operating locations, including industry and the economy generally.
Subject to clause 8, the company has the following powers, which may only be used to carry out its purpose(s) set out in clause 6:
(a) the powers of an individual, and
(b) all the powers of a company limited by guarantee under the Corporations Act.
8.1 The company must not distribute any income or assets directly or indirectly to its members, except as provided in clauses 8.2 and 70.
8.2 Clause 8.1 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 purpose(s).
9. Amending the constitution
9.1 The members may amend this constitution by passing a special resolution.
10. Membership and register of members
10.1 The members of the company are:
(a) initial members, and
(b) any other person that the directors allow to be a member, in accordance with this constitution.
10.2 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.
10.3 The company must give current members access to the register of members.
10.4 Information that is accessed from the register of members must only be used in a manner relevant to the interests or rights of members.
11.1 A person who supports the purposes of the company is eligible to apply to be a member of the company under clause 12.
11.2 In this clause, ‘person’ means an individual or incorporated body.
12. How to apply to become a member
A person (as defined in clause 11.2) 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 (should “Objects” be referenced here?) purpose(s) of the company, and
(c) agree to comply with the company’s constitution, including paying the guarantee under clause 4 if required.
13. Directors decide whether to approve membership
13.1 The directors must consider an application for membership within a reasonable time after the secretary receives the application.
13.2 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 14).
13.3 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.
13.4 For the avoidance of doubt, the directors may approve an application even if the application does not state the matters listed in clauses 12(a), 12(b) or 12(c). In that case, by applying to be a member, the applicant agrees to those three matters.
14. 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.
15. When a person stops being a member
A person immediately stops being a member if they:
(b) are wound up or otherwise dissolved or deregistered (for an incorporated member)
(c) resign, by writing to the secretary
(d) are expelled under clause 17, or
(e) have not responded within three months to a written request from the secretary that they confirm in writing that they want to remain a member.
Dispute resolution and disciplinary procedures
16. Dispute resolution
16.1 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.
16.2 A member must not start a dispute resolution procedure in relation to a matter which is the subject of a disciplinary procedure under clause 17 until the disciplinary procedure is completed.
16.3 Those involved in the dispute must try to resolve it between themselves within 14 days of knowing about it.
16.4 If those involved in the dispute do not resolve it under clause 16.3, 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.
(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 the president of the law institute or society in the state or territory in which the company has its registered office.
16.6 A mediator chosen by the directors under clause 16.5(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.
16.7 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.
17. Disciplining members
17.1 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.
17.2 At least 14 days before the directors’ meeting at which a resolution under clause 17.1 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.
17.3 Before the directors pass any resolution under clause 17.1, 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.
17.4 After considering any explanation under clause 17.3, 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.
17.5 The directors cannot fine a member.
17.6 The secretary must give written notice to the member of the decision under clause 17.4 as soon as possible.
17.7 Disciplinary procedures must be completed as soon as reasonably practical.
17.8 There will be no liability held by the company 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
18. General meetings called by directors
18.1 The directors may call a general meeting.
18.2 If members with at least 5% of the votes that may be cast at a general meeting make a written request to the company for a general meeting to be held, the directors must:
(a) within 21 days of the members’ request, give all members notice of a general meeting, and
(b) hold the general meeting within 2 months of the members’ request.
18.3 The percentage of votes that members have (in clause 18.2) is to be worked out as at midnight the day before the members request the meeting.
18.4 The members who make the request for a general meeting must:
(a) state in the request any resolution to be proposed at the meeting
(b) sign the request, and
(c) give the request to the company.
18.5 Separate copies of a document setting out the request may be signed by members if the wording of the request is the same in each copy.
19. General meetings called by members
19.1 If the directors do not call the meeting within 21 days of being requested under clause 18.2, 50% or more of the members who made the request may call and arrange to hold a general meeting.
19.2 To call and hold a meeting under clause 19.1 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.
19.3 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.
20. Annual general meeting
20.1 A general meeting, called the annual general meeting, must be held:
(a) within 18 months after registration of the company, and
(b) after the first annual general meeting, at least once in every calendar year.
20.2 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.
20.3 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.
20.4 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.
21. Notice of general meetings
21.1 Notice of a general meeting must be given to:
(a) each member entitled to vote at the meeting
(b) each director, and
(c) the auditor (if any).
21.2 Notice of a general meeting must be provided in writing at least 21 days before the meeting.
21.3 Subject to clause 21.4, 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) for any other general meeting, members with at least 95% of the votes that may be cast at the meeting agree beforehand.
21.4 Notice of a meeting cannot be provided less than 21 days before the meeting if a resolution will be moved to:
(b) appoint a director in order to replace a director who was removed, or
(c) remove an auditor.
21.5 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 does not need to 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.
21.6 If a general meeting is adjourned (put off) for one month or more, the members must be given new notice of the resumed meeting.
22. Quorum at general meetings
22.1 For a general meeting to be held, at least 2 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).
22.2 No business may be conducted at a general meeting if a quorum is not present.
22.3 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.
22.4 If no quorum is present at the resumed meeting within 30 minutes after the starting time set for that meeting, the meeting is cancelled.
23. Auditor’s right to attend meetings
23.1 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.
23.2 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.
24. Representatives of members
24.1 An incorporated member may appoint as a representative:
(a) one individual to represent the member at meetings and to sign circular resolutions under clause 31, and
(b) the same individual or another individual for the purpose of being appointed or elected as a director.
24.2 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.
24.3 A representative has all the rights of a member relevant to the purposes of the appointment as a representative.
24.4 The appointment may be standing (ongoing).
25. Using technology to hold meetings
25.1 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.
25.2 Anyone using this technology is taken to be present in person at the meeting.
26. Chairperson for general meetings
26.1 The elected chairperson is entitled to chair general meetings.
26.2 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.
27. Role of the chairperson
27.1 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)).
27.2 The chairperson does not have a casting vote.
28. Adjournment of meetings
28.1 If a quorum is present, a general meeting must be adjourned if a majority of members present direct the chairperson to adjourn it.
28.2 Only unfinished business may be dealt with at a meeting resumed after an adjournment.
Members’ resolutions and statements
29. Members’ resolutions and statements
29.1 Members with at least 5% of the votes that may be cast on a resolution may give:
(a) written notice to the company of a resolution they propose to move at a general meeting (members’ resolution), and/or
(b) a written request to the company that the company give all of its members a statement about a proposed resolution or any other matter that may properly be considered at a general meeting (members’ statement).
29.2 A notice of a members’ resolution must set out the wording of the proposed resolution and be signed by the members proposing the resolution.
29.3 A request to distribute a members’ statement must set out the statement to be distributed and be signed by the members making the request.
29.4 Separate copies of a document setting out the notice or request may be signed by members if the wording is the same in each copy.
29.5 The percentage of votes that members have (as described in clause 29.1) is to be worked out as at midnight before the request or notice is given to the company.
29.6 If the company has been given notice of a members’ resolution under clause 29.1(a), the resolution must be considered at the next general meeting held more than two months after the notice is given.
29.7 This clause does not limit any other right that a member has to propose a resolution at a general meeting.
30. Company must give notice of proposed resolution or distribute statement
30.1 If the company has been given a notice or request under clause 29:
(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. However, at a general meeting, the members may pass a resolution that the company will pay these expenses.
30.2 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 1000 words long
(b) the directors consider it may be defamatory
(c) clause 30.1(b) applies, and the members who proposed the resolution or made the request have not paid the company enough money to cover the cost of sending the notice of the proposed members’ resolution or a copy of the members’ statement to members, or
(d) 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.
31. Circular resolutions of members
31.1 Subject to clause 31.3, the directors may put a resolution to the members to pass a resolution without a general meeting being held (a circular resolution).
31.2 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.
31.3 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.
31.4 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 31.5 or clause 31.6.
(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.
31.6 The company may send a circular resolution by email to members and members may agree by sending a reply email to that effect, including the text of the resolution in their reply.
Voting at general meetings
32. How many votes a member has
Each member has one vote.
33. Challenge to member’s right to vote
33.1 A member or the chairperson may only challenge a person’s right to vote at a general meeting at that meeting.
33.2 If a challenge is made under clause 33.1, the chairperson must decide whether or not the person may vote. The chairperson’s decision is final.
34. How voting is carried out
34.1 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.
34.2 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.
34.3 On a show of hands, the chairperson’s decision is conclusive evidence of the result of the vote.
34.4 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.
35. When and how a vote in writing must be held
35.1 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.
35.2 A vote in writing must be taken when and how the chairperson directs, unless clause 35.3 applies.
35.3 A vote in writing must be held immediately if it is demanded under clause 35.1:
(a) for the election of a chairperson under clause 26.2, or
(b) to decide whether to adjourn the meeting.
35.4 A demand for a vote in writing may be withdrawn.
36. Appointment of proxy
36.1 A member may appoint a proxy to attend and vote at a general meeting on their behalf.
36.2 A proxy does not need to be a member.
36.3 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 35.1.
36.4 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.
36.5 A proxy appointment may be standing (ongoing).
36.6 Proxy forms must be received by the company at the address stated in the notice under clause 21.5(d) or at the company’s registered address at least 48 hours before a meeting.
36.7 A proxy does not have the authority to speak and vote for a member at a meeting while the member is at the meeting.
36.8 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.
36.9 A proxy appointment may specify the way the proxy must vote on a particular resolution.
37. Voting by proxy
37.1 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 as a member on a show of hands).
37.2 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.
38. Number of directors
The company must have at least three and no more than nine directors.
39. Election and appointment of directors
39.1 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.
39.2 Apart from the initial directors and directors appointed under clause 39.5, the members may elect a director by a resolution passed in a general meeting.
39.3 Each of the directors must be appointed by a separate resolution, unless:
(a) the members present have first passed a resolution that the appointments may be voted on together, and
(b) no votes were cast against that resolution.
39.4 A person is eligible for election as a director of the company if they:
(a) are a member of the company, or a representative of a member of the company (appointed under clause 24)
(b) are nominated by two members or representatives of members entitled to vote (unless the person was previously elected as a director at a general meeting and has been a director since that meeting),
(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.
39.5 The directors may appoint a person as a director to fill a casual vacancy or as an additional director if that person:
(a) is a member of the company, or a representative of a member of the company (appointed under clause 24)
(b) gives the company their signed consent to act as a director of the company, and
(c) is not ineligible to be a director under the Corporations Act.
39.6 If the number of directors is reduced to fewer than three or is less than the number required for a quorum, the continuing directors may act for the purpose of increasing the number of directors to three (or higher if required for a quorum) or calling a general meeting, but for no other purpose.
The directors must elect a director as the company’s elected chairperson.
41. Term of office
41.1 At each 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.
41.2 The directors who must retire at each annual general meeting under clause 41.1(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.
41.3 Other than a director appointed under clause 39.5, 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.
41.4 Each director must retire at least once every three years.
41.5 A director who retires under clause 41.1 may nominate for election or re-election, subject to clause 41.6.
41.6 A director who has held office for a continuous period of nine years or more may only be re-appointed or re-elected by a special resolution
42. When a director stops being a director
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) stop being a member of the company
(e) are a representative of a member, and that member stops being a member
(f) are a representative of a member, and the member notifies the company that the representative is no longer a representative
(g) are absent for  consecutive directors’ meetings without approval from the directors, or
(h) become ineligible to be a director of the company under the Corporations Act.
Powers of directors
43. Powers of directors
43.1 The directors are responsible for managing and directing the activities of the company to achieve the purpose(s) set out in clause 6.
43.2 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.
43.3 The directors must decide on the responsible financial management of the company including:
(a) any suitable written delegations of power under clause 44, and
(b) how money will be managed, such as how electronic transfers, negotiable instruments or cheques must be authorised and signed or otherwise approved.
43.4 The directors cannot remove a director or auditor. Directors and auditors may only be removed by a members’ resolution at a general meeting.
44. Delegation of directors’ powers
44.1 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.
44.2 The delegation must be recorded in the company’s minute book.
45. Payments to directors
45.1 The company must not pay fees to a director for acting as a director.
(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.
45.3 Any payment made under clause 45.2 must be approved by the directors.
45.4 The company may pay premiums for insurance indemnifying directors, as allowed for by law (including the Corporations Act) and this constitution.
46. 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
47. Duties of directors
The directors must comply with their duties as directors under legislation and common law (judge-made law).
48.1 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.
48.2 The disclosure of a conflict of interest by a director must be recorded in the minutes of the meeting.
48.3 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 clauses 48.4:
(a) be present at the meeting while the matter is being discussed, or
(b) vote on the matter.
48.4 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 67)
(c) their interest relates to a payment by the company under clause 66 (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.
49. When the directors meet
The directors may decide how often, where and when they meet.
50. Calling directors’ meetings
50.1 A director may call a directors’ meeting by giving reasonable notice to all of the other directors.
50.2 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.
51. Chairperson for directors’ meetings
51.1 The elected chairperson is entitled to chair directors’ meetings.
51.2 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.
52. Quorum at directors’ meetings
52.1 Unless the directors determine otherwise, the quorum for a directors’ meeting is a majority (more than 50%) of directors.
52.2 A quorum must be present for the whole directors’ meeting.
53. Using technology to hold directors’ meetings
53.1 The directors may hold their meetings by using any technology (such as video or teleconferencing) that is agreed to by all of the directors.
53.2 The directors’ agreement may be a standing (ongoing) one.
53.3 A director may only withdraw their consent within a reasonable period before the meeting.
54. 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.
55. Circular resolutions of directors
55.1 The directors may pass a circular resolution without a directors’ meeting being held.
55.2 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 55.3 or clause 55.4.
(a) a single document setting out the resolution and containing a statement that they agree to the resolution, or
(b) separate copies of that document, as long as the wording of the resolution is the same in each copy.
55.4 The company may send a circular resolution by email 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.
55.5 A circular resolution is passed when the last director signs or otherwise agrees to the resolution in the manner set out in clause 55.3 or clause 55.4.
56. Appointment and role of secretary
56.1 The company must have at least one secretary, who may also be a director.
56.2 The initial secretary for the company is the person who has agreed to act as secretary, and who is named as proposed secretary in the application for registration of the company.
56.3 If, for any reason, the initial secretary ceases to be the secretary of the company, a replacement secretary must be appointed by the directors (after the replacement secretary has given the company their signed consent to act as secretary).
56.4 The directors may remove the initial secretary, and any replacement secretaries.
56.5 The directors must decide the terms and conditions under which the secretary is appointed, including any remuneration.
56.6 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
57. Minutes and records
57.1 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 30.
57.2 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.
57.3 To allow members to inspect the company’s records:
(a) the company must give a member access to the records set out in clause 57.1, and
(b) the directors may authorise a member to inspect other records of the company, including records referred to in clause 57.2 and clause 58.1.
57.4 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.
57.5 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.
58. Financial and related records
58.1 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.
58.2 The company must also keep written records that correctly record its operations.
58.3 The company must retain its records for at least 7 years.
58.4 The directors must take reasonable steps to ensure that the company‘s records are kept safe.
59.1 The directors may pass a resolution to make by-laws to give effect to this constitution.
59.2 Members and directors must comply with by-laws as if they were part of this constitution.
60.1 Anything written to or from the company under any clause in this constitution is written notice and is subject to clauses 61 to 63, unless specified otherwise.
60.2 Clauses 61 to 63 do not apply to a notice of proxy under clause 36.6.
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.
62. Notice to members
62.1 Written notice or any communication under this constitution may be given to a member:
(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).
62.2 If the company does not have an address for the member, the company is not required to give notice in person.
63. When notice is taken to be given
(a) delivered in person, or left at 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 after it is sent, and
(d) given under clause 62.1(e) is taken to be given on the business day after the notification that the notice is available is sent.
The company‘s financial year is from [1 July] to [30 June], unless the directors pass a resolution to change the financial year.
Audit and accounts
65. Audit and Accounts
65.1 The Directors must cause the company to keep written financial records in relation to the business of the company in accordance with the requirements of the Corporations Act.
65.2 The Directors must cause the financial records of the company to be audited in accordance with the requirements of the Corporations Act.
65.3 If the Directors fail to comply with their obligations under this rule 65, a Member may where:
(a) it has given notice to the company of its intention to exercise the rights set out below; and
(b) the request report or information is not provided within 14 days after the Member gives the notice,
the Member may:
(c) cause an audit to be conducted of the affairs of the company in respect of the period for which there has been a material failure to provide those reports or information; and
(d) on reasonable notice, enter he premise occupied by the company to search for records and accounts and to inspect and take copies of the records and accounts.
65.4 The company will keep separate financial accounts in relation to the financial transactions of the company which will record:
(a) commercialisation income;
(b) commercialisation expenses; and
(c) any other income or expenditure of the company.
65.5 The company must, within 5 months of the end of each Financial Year, provide a written report to each Member of the activities conducted in that Financial Year, including information regarding:
(a) Entry into projects and major agreements;
(b) Progress in relation to the company’s strategic plan and operational plan; and
(c) Likely or actual achievement of any milestones and deliverables that are material to the fulfilment of the company’s objectives, including progress on the commercialisation of intellectual property.
65.6 The company must, within 14 days of becoming aware, give written notice to each Member should any of the following occur:
(a) Any litigation threatened or commenced against the Institute;
(b) Any notification from any government agency of breach or alleged breach of any obligations;
(c) Any dispute between the Institute and any third party.
Indemnity, insurance and access
66.1 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.
66.2 In this clause, ‘officer’ means a director or secretary and includes a director or secretary after they have ceased to hold that office.
66.3 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).
66.4 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.
68. Directors’ access to documents
68.1 A director has a right of access to the financial records of the company at all reasonable times.
68.2 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.
69. 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.
70. Distribution of surplus assets
70.1 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 in accordance with the Act.
Definitions and interpretation
In this constitution:
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 40
general meeting means a meeting of members and includes the annual general meeting, under clause 20.1
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
special resolution means a resolution:
i. of which notice has been given under clause 21.5(c), and
ii. that has been passed by at least 75% of the votes cast by members present and entitled to vote on the resolution, and
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.
72. Reading this constitution with the Corporations Act
72.1 The replaceable rules set out in the Corporations Act do not apply to the company.
72.2 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 or 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).