1. 1 Name of the Foundation
The name of the Foundation is DAINTREE RAINFOREST FOUNDATION LTD – ACN 158 520 499 (hereinafter referred to as the Foundation), a Foundation limited by guarantee;
1.2 Replaceable rules
The Replaceable Rules contained in the Act do not apply to the Foundation.
The following definitions apply in this Constitution unless the context otherwise requires:
- Act means the Corporations Act 2001 (Commonwealth) and the Corporations Regulations.
- Board means the Board of the Foundation referred to in Article 24.
- Director means a person appointed or elected to the office of Director of the Foundation in accordance with this Constitution.
- Fund means the public fund named DAINTREE RAINFOREST FUND, as defined in Article 4.1 and hereinafter referred to as the Fund.
- ITAA means the Income Tax Assessment Act 1997 (Commonwealth).
- Land means the land as defined in Article 8 (hereinafter referred to as the Land).
- Member means a Member of the Foundation as defined in Article 11.
- Member Present means, in connection with a meeting, the full Member present in person at the venue or venues for the meeting or by proxy, by attorney and, where the full Member is a body corporate, by representative.
- Rules have the meaning of the rules for the time being of the Foundation and Fund, as varied or replaced from time to time.
- Senior Traditional Owner of the Land is the person identified as such by the relevant Aboriginal community and the cultural heritage body registered under Queensland’s Aboriginal Cultural Heritage Act 2003.
- Wet Tropics Management Authority means the authority, established under the Wet Tropics World Heritage Protection and Management Act 1993 to ensure that Australia’s obligations in relation to the wet tropics area, as defined within the meaning of the World Heritage Convention, are met.
- World Heritage Convention means the Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 16 November 1972.
Headings are for convenience only and do not affect interpretation. Unless the context requires otherwise, the following rules of interpretation apply:
(a) A gender includes all genders.
(b) The singular includes the plural and vice versa.
(c) Where a word or phrase is defined, its alternate grammatical forms have corresponding meanings.
(d) A reference to a paragraph or sub-paragraph is to a paragraph or sub-paragraph, as the case may be, of the Article or paragraph, respectively, in which the reference appears.
(e) A reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it, and all regulations and statutory instruments issued under it.
(f) Except in so far as a contrary intention appears in this Constitution, an expression has, in a provision of this Constitution that relates to a particular provision of an Act, the same meaning as in that provision of the Act.
4. PREVIOUS CONSTITUTION SUPERSEDED
This constitution supersedes the constitution in force immediately before the adoption of this constitution.
Everything done under any previous constitution of the Foundation continues to have the same operation and effect after the adoption of this constitution as if properly done under this constitution. In particular every director, member and Foundation Secretary in office or admitted immediately before adoption of this constitution is taken to have been appointed or admitted and will continue in office under this constitution.
6. ENVIRONMENTAL OBJECTIVES
The purpose of the Foundation is to establish and maintain the Fund for the specific function of supporting the goal and objects of the Foundation as it applies to the Land, such that:
(a) The Fund is established to receive all gifts of money or property for this purpose and any money received because of such gifts must be credited to its Fund; and
(b) The Fund must not receive any other money or property into its account and it must comply with subdivision 30-E of the Income Tax Assessment Act 1997.
The primary goal of the Foundation is to assist in the achievement of Australia’s international duty to protect, conserve, present, rehabilitate and transmit to future generations the Wet Tropics World Heritage values of the Land, within the meaning of the World Heritage Convention.
6.31 The objects of the Foundation are to:
(a) Ensure that Australia’s obligations to the Land, as defined within the meaning of article 5 of the World Heritage Convention, are met;
(b) Consolidate the ecological bond between the inhabitant people of the Land (and their community) as constituent parts of the natural environment, by supporting their knowledge and traditional practices and their vital roles in environmental management and development, to ensure that the natural heritage of the Land has a cultural function in the life of this community.
(c) Meet the requirement of the World Heritage Convention, Article 17, which states:
‘the States Parties to this Convention shall consider or encourage the establishment of national public and private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage as defined in Articles 1 and 2 of the Convention’;
(d) Develop and implement policies and programs in relation to the management of the Land;
(e) Prepare, and ensure the implementation of, management plans for the Land;
(f) Administer funding arrangements in relation to the Land;
(g) Enter into, and facilitate the entering into of, cooperative management arrangements (including joint management agreements) with land-holders, indigenous people particularly concerned with the Land and other persons;
(h) Enter into arrangements for the provision of rehabilitation and restoration works in relation to the Land;
(i) Gather, research, analyse and disseminate information about the Land;
(j) Develop public and community education programs in relation to the Land;
(k) Promote the values of the Land locally, nationally and internationally;
(l) Liaise with the governments and authorities of the State, the Commonwealth, other States and the Territories, and international and foreign organisations and agencies;
(m) Monitor the environmental state of the Land;
(n) Advise and report to the Wet Tropics Management Authority on the state of the Land; and
(o) Perform functions incidental to a function under another paragraph of this subsection.
6.32 Protection of natural and cultural heritage
The Foundation must perform its functions in a way that is consistent with the protection of the natural and cultural heritage values of the Land, including its inhabitant people.
6.33 Regard for Aboriginal People concerned with the Land
Subject to Article 6.32, in performing its functions, the Foundation must, as far as practicable:
(a) Have regard to the traditions of the indigenous people particularly concerned with the Land; and
(b) Liaise, and cooperate with, indigenous people particularly concerned with the Land.
Subject to article 9, the Foundation has the following powers, which may only be used to carry out its environmental objects set out in article 6:
(a) the powers of an individual; and
(b) all the powers of a company limited by guarantee under the Act.
8. THE LAND
8.1 The Land to which the Foundation applies
(a) Lot 52 on SR537, Parish of Alexandra, County of Solander, freehold land within the Wet Tropics World Heritage Area, managed by ‘Daintree Rainforest Pty.Ltd’ (trading as) ‘Daintree Rainforest’, in accordance with the requirements of Queensland’s Wet Tropics World Heritage Management & Protection Act 1993 and the Aboriginal Cultural Heritage Act 2003;
(b) Lot 52 on SR537 is also is a Nature Refuge, declared under Queensland’s Nature Conservation Act 1992, through a Conservation Agreement with the Queensland Government, as ‘Daintree Rainforest Nature Refuge’;
(c) Lot 52 on SR537 is also formally a part of the Wildlife Land Trust wildlife sanctuary system, in association with Humane Society International; and
(d) Other lands within close proximity to Lot 52 on SR537, or any other lands that the Board deem appropriate for assistance from the Foundation.
9. INCOME AND PROPERTY
9.1 Application of income and property
Subject to Articles 9.2 and 9.3, the profits (if any) or other income and property of the Foundation must be applied solely towards the promotion of the Environmental Objects of the Foundation set out in Article 6 and no portion of it may be paid or transferred, directly or indirectly, to any Member of the Foundation whether by way of dividend, bonus or otherwise.
9.2 Not for profit
Nothing in Article 9.1 prevents any payment in good faith by the Foundation of:
(a) Reasonable and proper remuneration to any Member for any services actually rendered or goods supplied to the Foundation in the ordinary and usual course of business;
(b) The payment or reimbursement of out-of-pocket expenses incurred by a Member of the Foundation on behalf of the Foundation where the amount payable does not exceed an amount previously approved by the Board of the Foundation;
(c) Reasonable and proper rent for premises let or demised by any Member of the Foundation to the Foundation; or
(d) Monies to any Member, being a solicitor, accountant or other person engaged in any profession, for all usual professional or other charges for work done by that person or that person’s firm or employer, where the provision of the service has the prior approval of the Board and where the amount payable is approved by the Board and is not more than an amount which commercially would be reasonable payment for the service.
9.3 Payment for legitimate fees
The Foundation must not pay fees to Directors but the Foundation may make payments in good faith for:
(a) The payment or reimbursement of out-of-pocket expenses incurred by a Director in the performance of any duty as Director where the amount payable does not exceed an amount previously approved by the Board;
(b) Monies to any Director, being a solicitor, accountant or other person engaged in any profession, for all usual professional or other charges for work done by that person or that person’s firm or employer where the provision of the service has the prior approval of the Board and where the amount payable is approved by the Board and is not more than amount which commercially would be reasonable payment for the service;
(c) Any salary or wage due to the Director as an employee of the Foundation where the Board has approved the terms of employment;
(d) An insurance premium in respect of a contract insuring a Director to which s212 of the Act refers or the provision of a financial benefit to a Director to which s211 of the Actrefers;
(e) Any payment to a Director in the capacity of a Member; and
(f) Any other payment to any Director approved by the Board.
9.4 Conduit policy
Any allocation of funds or property to other persons or organisations will be made in accordance with the established Environmental Objects of the Foundation and not be influenced by the preference of the donor.
10. THE DAINTREE RAINFOREST FUND
10.1 Establishment of the Fund
The Fund is established for the sole purpose of supporting the Environmental Objects of the Foundation.
10.2 Ministerial Rules
The Foundation agrees to comply with any rules that the (Assistant) Treasurer and the Environment Minister of the Commonwealth Government of Australia make to ensure that gifts to the Fund are only used for its Environmental Objects.
10.3 Public Invitations
The Foundation will invite members of the public to make donations of money or property to the Fund for the Environmental Objects of the Foundation.
10.4 Fund to receive all donations
All donations of money or property received by the Foundation for the Environmental Objects must be paid into the Fund.
10.5 Account exclusive to Fund
The Foundation shall open and maintain in the name of the Fund a separate account or accounts at such bank or banks as the Management Committee may from time to time determine and all money which forms part of the Fund must be paid into such account or accounts.
The administration of the Fund shall be under the day to day control of a Management Committee appointed from time to time by the directors of the Foundation and consisting of not less than three members.
10.7 Management Committee to determine signatories
The Management Committee shall determine who shall be entitled to operate on such account or accounts.
10.8 Permissible appointments
A member of the Management Committee may, but need not, be a member or director of the Foundation.
10.9 Responsible persons
A majority of the members of the Management Committee must be “responsible persons” (as defined by and otherwise meet the requirements of the Department) for membership of the Management Committee.
The Management Committee shall administer the Fund in accordance with these Rules and may exercise all of the duties and powers of the directors of the Foundation in relation to the administration of the Fund, including, without limitation, the power to issue receipts for donations, the power to invest the Fund and the power to acquire and dispose of land.
10.11 Constitutional provisions
The provisions of the Constitution with respect to committees apply to the Management Committee.
10.12 Accumulation of income
The income of the whole or any part of the Fund may be accumulated and any income so accumulated shall be added to form part of the capital of the Fund.
10.13 Payment preclusions
Except as provided in Rule 10.14, no part of the Fund may be paid, transferred or applied, directly or indirectly, by way of dividend, bonus, distribution or otherwise to:
(a) The directors of the Foundation;
(b) The members of the Foundation;
(c) The members of the Management Committee;
(d) The controllers or owners of the Foundation; or
(e) Any person claiming through any of the persons named in paragraphs (a) to (d).
10.14 Payment exceptions
The Fund may be used to pay for reasonable general operating expenses of the Foundation including rent, stationery, salaries and wages in accordance with the Constitution.
The Fund may be invested in any investments in which for the time being the Foundation is authorised to invest by the Constitution and the Act.
10.16 Reporting requirements
The Foundation must inform the Commonwealth Department of Environment as soon as possible, if:
(a) it changes its name or the name of the Fund;
(b) there is any change to the membership of the Management Committee, which, in accordance with article 10.6, is responsible for administering the Fund; and/or
(c) there has been any departure from the rules of the Fund set out in this Constitution.
(a) An audited financial statement for the Foundation and the Fund will be supplied with the annual statistical return. The statement will provide information on the expenditure of trust monies and the management of trust assets.
(b) The Management Committee shall keep or cause to be kept proper accounts of all receipts, payments, assets and liabilities relating to the Fund and all other matters necessary for showing a true statement and condition of the Fund and such accounts shall be audited at least once a year by the Foundation’s auditor.
(a) Receipts must be issued in the name of the Fund.
(b) The receipt in writing of the Foundation, or any director, secretary or officer of the Foundation or any member of the Management Committee on behalf of the Foundation, for all money or other property paid or transferred to the Fund, shall effectively discharge the person paying or transferring the same and from being concerned to see to the application thereof.
11. AMENDMENT OF CONSTITUTION
11.1 Amendment by Special Resolution
Subject to article 11.2, the board of directors may amend this Constitution by passing a Special Resolution.
11.2 Charitable status to be preserved
The board of directors must not pass a Special Resolution that amends this Constitution if passing it causes the Foundation to no longer be a charity or causes it to lose entitlement to an authority under the ACNC Act.
11.3 Approval by relevant authority
No addition, alteration or amendment to this Constitution will be effective unless such addition, alteration or amendment has, if required, been approved by the relevant authority.
12. WINDING UP
If, after winding-up or dissolution of the Foundation, having satisfied all its debts and liabilities, any residual property remaining may not be paid to or distributed among the Members, but must be given or transferred, by special resolution, to another environmental organisation or organisations that is or are also on the Register of Environmental Organisations:
(a) Having similar objects; and
(b) Whose rules or constitution prohibit the distribution of its income and property among its Members to the extent imposed on the Foundation under this Constitution; or
(c) If there are no organisations meeting the requirements of sub-paragraph (a) and (b), to one or more other institutions, associations or bodies selected by special resolution at or before the dissolution of the Foundation, being an institution accepted as a deductible gift recipient under sub-division 30-B, section 30-100 of the Income Tax Assessment Act 1997 (Commonwealth) by the Commissioner of Taxation or otherwise approved for these purposes by the Commissioner of Taxation,
as determined by the directors of the Foundation and, if more than one, in such shares and proportions among them as the directors may determine.
13.1 Number of Members
The number of Members with which the Foundation proposed to be registered is unlimited.
13.2 Members of the Foundation
The Members of the Foundation will be:
(a) The persons specified, with their consent, as proposed in the Foundation’s application for Membership; and
(b) Any other person admitted to the Membership in accordance with this Constitution or any previous constitution of the Foundation.
13.3 Members must be adults or bodies corporate
All Members must be adults or bodies corporate.
13.4 Board determines Member number and class
The Board may determine from time to time the minimum and maximum number of Members of the Foundation as a whole or any class of Membership.
13.5 Member fees and subscriptions
The Board shall fix the entrance fee (if any) and the subscription payable by an applicant for Membership.
13.6 Admission or rejection of Membership
The Board may admit or reject any applicant for Membership without the necessity of assigning any reason therefore. If the applicant is not admitted to Membership in due course, all monies paid by him or her to the Foundation must be returned forthwith in full.
13.7 Further Classes of Membership
The Board may at any time:
(a) Establish a new class of Membership;
(b) Determine or change the existing classes of Membership including any entitlements including voting rights; and
(c) Set and amend the Membership fees for each class of Membership.
13.8 Membership by Board invitation
Application for Membership is by invitation of the Board. The Board may admit any person as a full Member with the written consent of the person.
13.9 Membership and registration upon Board admission
A person will immediately become a Member of the Foundation and must be registered in the Foundation’s register of Members when the Board determine to admit the person as a Member.
13.10 Members validly admitted
Each person recorded in the register of Members of the Foundation at the date of adoption of this Constitution is deemed to have been validly admitted as a Member of the Foundation on the date of admission applicable to that Member recorded in the register of Members, notwithstanding any defect in the admission of the Member.
14. LIABILITY OF MEMBERS
No Member will be liable to contribute towards the payment of the debts and liabilities of the Foundation or the costs, charges and expenses of a winding-up of the Foundation.
15. CESSATION OF MEMBERSHIP
15.1 Resignation of a Member
A Member of the Foundation may resign their Membership at any time, by giving notice in writing to the Secretary. The resignation will be effective from the date of receipt of the notice by the Secretary. That Member’s name must be removed from the register of Members.
15.2 Membership automatically ceases
Membership of the Foundation automatically ceases:
(a) In the case of a Member who is a natural person, on the date that the Member dies;
(b) In the case of a Member which is a body corporate, on the date that:
(i) A liquidator is appointed in connection with the winding-up or dissolution of the Member; or
(ii) A court order is made for the winding-up or dissolution of the Member.
16. GENERAL MEETINGS
16.1 Annual General Meeting to be held
An annual general meeting of Members of the Foundation shall be held once in each calendar year at intervals not greater than fifteen months between meetings, at such time and place as the Board may determine in accordance with the Act.
16.2 Business at an annual general meeting
Subject to this Constitution, the business at an annual general meeting must be:
(a) The presentation of an annual report by the Chairperson;
(b) The presentation of a financial statement from the auditor or auditors;
(c) The election of an auditor or auditors;
(d) The election of Directors to the Board;
(e) The Board appointment of Chairperson and Deputy Chairperson from the Members of the Board; and
(f) Such other business as is placed on the agenda by:
(i) The Board; or
(ii) Pursuant to notice in writing by at least five Members addressed to the Secretary and received by the Secretary no less than 11 weeks (77 days) prior to the annual general meeting date.
16.3 Posting annual reports and financial statements
The annual report and financial statements shall be posted to all Members of the Foundation no later than 28 days prior to the annual general meeting date; provided, however, that the Board may elect to post to Members a concise annual report, containing a summary of the full report and information on where the full report may be accessed electronically and how to request a hard copy of the full report.
16.4 Holding general meetings
General meetings of the Foundation may be called and held at the times and places and in the manner determined by the Board.
16.5 General meeting convened by Members
Except as permitted by the Act, the Members may not convene a meeting of the Foundation. Any general meeting (other than a general meeting which has been requisitioned or called by Members in accordance with the Act) may be cancelled or postponed by a resolution of the Board prior to the date on which it is to be held.
17. Chairperson of general meetings
17.1 Presiding Chairperson
Subject to Article 13.2, the Chairperson or, in the Chairperson’s absence, the Deputy Chairperson will preside as Chairperson at every meeting.
17.2 Chairperson in absentia
Where a meeting is held and:
(a) There is no Chairperson or Deputy Chairperson; or
(b) The Chairperson or Deputy Chairperson is not present within 15 minutes after the time appointed for the meeting or does not wish to act as Chairperson of the meeting,
the Directors present may choose one of their number or, in the absence of all Directors or if none of the Directors present wish to act, the Members Present may elect one of their number to be Chairperson of the meeting.
17.3 Chairperson’s role
The Chairperson of a general meeting:
(a) Has charge of the general conduct of the meeting;
(b) May require the adoption of any procedure which is in the Chairperson’s opinion necessary or desirable for proper and orderly debate or discussion or casting or recording of votes at the meeting; and
(c) May, having regard where necessary to the Act, terminate discussion or debate on any matter whenever the Chairperson considers it necessary or desirable for the proper conduct of the meeting.
A decision by the Chairperson under this article is final.
18. Adjournment of general meetings
The Chairperson of a general meeting may at any time during the meeting adjourn the meeting or any business, motion, question, resolution, debate or discussion being considered or remaining to be considered by the meeting. The adjournment may be either to a later time at the same meeting or to an adjourned meeting at any time and any place, but:
(a) In exercising this right of adjournment, the Chairperson has sole discretion to decide whether to seek the approval of the Members present to the adjournment and, unless the Chairperson exercises that discretion, no vote may be taken or demanded by the Members present in respect of the adjournment; and
(b) Only unfinished business is to be transacted at a meeting resumed after an adjournment.
19. Business of general meetings
Unless all full Members are present as Members Present and agree otherwise, business must not be transacted at any general meeting except as set out in the notice of meeting.
In this Constitution, any reference to the posting or distribution of any material shall be deemed satisfied with respect to any recipient if such material is delivered by electronic mail or other means, subject to such regulations as the Board may adopt.
21. Notice of general meeting
(a) The Secretary must give not less than 28 days’ notice of a general meeting in the manner that the Board deems appropriate, including notice of any general meeting at which the Board propose or this constitution requires that an election of the Board be held. Notice of meetings shall contain the information required by the Act and be given to the Members and to such persons as are entitled under this Constitution or the Act to receive notice. The non-receipt of a notice of any general meeting by, or the accidental omission to give notice to, any person entitled to notice, does not invalidate any resolution passed at that meeting.
(b) If the meeting is to be held at two or more places the notice is to set out details of the technology that will be used to facilitate such a meeting and any other matters that the Constitution or the Act requires to be stated in relation to the use of such technology.
(c) Only a voting Member may seek to place an item of business (‘Matter’) before a general meeting, by giving the Secretary written notice of the Matter at least thirty-five (35) days before the next general meeting. The Board may determine in its absolute discretion whether to include the Matter as part of the business of the general meeting.
22. 1 Voting rights
Subject to this Constitution:
(a) At meetings of Members each Member Present has the right to one vote;
(b) If a Member is of unsound mind or is a person whose person or estate is liable to be dealt with in any way under the law relating to mental health, his trustee or such other person that properly has the management of his estate may exercise any rights of the Member in relation to a general meeting as if the trustee or other person were the Member.
(c) Subject to paragraph (d) of this rule, where a person is entitled to vote in more than one capacity, that person is entitled only to one vote on a show of hands; and
(d) If the person appointed as proxy has two (2) or more appointments that specify different ways to vote on the resolution, the proxy must not vote on a show of hands.
22.2 Voting rights of other classes of Members
The voting rights of other classes of Members shall be as determined by the Board from time to time.
22.3 Right to appoint proxy
Subject to the Act:
(a) Any Member entitled to vote at a general meeting may appoint one proxy, who must be a Member of the Foundation entitled to vote at a general meeting of the Foundation in their own right;
(b) The instrument appointing a proxy must be given to the Secretary no later than forty-eight (48) hours before the time of the meeting for which the proxy is appointed.
(c) A Member may hold any number of proxies.
(d) No instrument appointing a proxy is valid, except as provided in this rule, after the expiration of twelve (12) months after the date of its execution.
(e) Any Member may give an instrument appointing a proxy and the appointment is valid for all or any stipulated meetings of the Foundation until revocation.
23. Voting at general meetings
23.1 Resolutions decided by show of hands or poll
Any resolution to be considered at a meeting must be decided on a show of hands unless a poll is demanded.
23.2 Evidence of declared resolution
A declaration by the Chairperson that a resolution has on a show of hands been carried or lost and an entry to that effect in the minutes of the meeting are conclusive evidence of the fact without the need to show the number or proportion of the votes recorded in favour of or against the resolution.
23.3 Demanding a poll for a resolution
A poll for a resolution may be demanded by:
(a) The Chairperson;
(b) At least 2 Voting Members Present and entitled to vote on the resolution.
23.4 Polling directed by the Chairperson
If a poll is demanded as provided in Article 19.3, it is to be taken in the manner and at the time and place as the Chairperson directs, and the result of the poll is deemed to be the resolution of the meeting at which the poll was demanded.
23.5 Poll demand may be withdrawn
The demand for a poll may be withdrawn.
23.6 Chairperson’s determination of dispute is final
In the case of any dispute as to the admission or rejection of a vote, the Chairperson’s determination in respect of the dispute made in good faith is final.
23.7 Prohibited polls
A poll may not be demanded on the election of a Chairperson or on a resolution for adjournment.
24. Voting by the Chairperson
In the case of an equality of votes on a show of hands or on a poll the Chairperson of the meeting has a casting vote in addition to any vote to which the Chairperson may be entitled as a Member, proxy, attorney or body corporate representative.
25. Continuation of business
A demand for a poll does not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded. A poll demanded on any question of adjournment is to be taken at the meeting immediately and without adjournment.
26. Special General Meetings
26.1 Calling special general meetings
Subject to this Constitution the Board may call a Special General Meeting of Members of the Foundation to consider any business.
26.2 Same rules apply to special general meetings
All the provisions of these rules as to general meetings apply to any Special General Meetings of any class of Members that may be held pursuant to the operation of these rules or the Act.
27.1 Business must not be transacted at any general meeting unless a quorum of full Members is present at the time when the meeting proceeds to business.
27.2 Constituting a quorum
Except as otherwise provided in this Constitution, three (3) Members Present constitute a quorum.
27.3 Adjournment in absence of quorum
If a quorum is not present within twenty (20) minutes after the time appointed for the meeting:
(a) Where the meeting is convened on the requisition of Members, the proposed meeting is automatically dissolved (subject to Article 23.4);
(b) In any other case:
(i) the meeting stands adjourned to a day and at a time and place as the Board decides; and
(ii) if at the adjourned meeting a quorum is not present within twenty (20) minutes after the time appointed for the meeting, the meeting is automatically dissolved.
(a) The Chairperson may at any time during the course of the meeting adjourn from time to time and place to place the meeting or any business, motion, question or resolution being considered or remaining to be considered by the meeting or any debate or discussion and may adjourn any business, motion, question, resolution, debate or discussion either to a later time at the same meeting or to an adjourned meeting.
(b) If the Chairperson exercises a right of adjournment of a meeting pursuant to this rule, the Chairperson has the sole discretion to decide whether to seek the approval of the Members present to the adjournment and, unless the Chairperson exercises that discretion, the Members present in respect of the adjournment may take no vote.
(c) No business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
28.1 Governing body of the Foundation
The Board shall be the governing body of the Foundation and shall be the ‘Committee’ of the Foundation for purposes of the Act.
28.2 Qualification for Membership of the Board
Subject to this Constitution, all Members of the Board are required to be natural persons; and
(a) Only an individual who is at least eighteen (18) years-of-age may be appointed as a Director of a Foundation; and
(b) A person who is disqualified from managing corporations under Part 2D.6 of the Actmay only be appointed as Director of the Foundation if the appointment is made with permission granted by ASIC under section 206F or by leave granted by the Court under section 206G.
28.3 Members of the Board
The number of Directors on the Board shall not be less than three (3) or more than seven (7), until otherwise determined by the Foundation in general meeting. The Board consists of:
(b) Deputy Chairperson;
(d) A maximum of four (4) other Members who shall be elected or appointed in accordance with these rules; and
(e) Until otherwise determined by the Foundation in general meeting, there shall be not less than two (2) elected Directors whose normal place of residence is upon the Land; and
(f) The Board may at any time appoint up to five (5) co-opted Members, to be chosen with the aim of ensuring that the Board has an appropriate mix of skills and experience to perform its functions.
29. Term of Office for Board Members
Subject to this Constitution, Board Members shall serve a term of one (1) year, holding office until the close of the next Annual General Meeting following their appointment.
30. Reappointment of retiring Directors
Where a Director has retired in accordance with article 28, that Director is eligible for reappointment to that office unless the Board has resolved otherwise:
(a) To appoint another person to that office; or
(b) Not to appoint any person to that office.
31. Appointment and removal of Director
Subject to the Act, the Foundation may at any time by resolution passed in general meeting:
(a) Appoint any person as a Director; or
(b) Remove any Director from office.
32. Cessation of Membership and vacancies
32.1 Cessation of Board Membership
A Board Member shall cease to be a Member if he or she:
(b) Declines to act;
(d) Ceases to be a Member of the Foundation; or
(e) Is removed by a resolution of the Board.
32.2 Power to appoint Members to the Board
The Board has the power at any time and from time to time to appoint a qualified person as a Member of the Board either to fill a casual vacancy among the Board or as an addition to the existing Members but so that the total number of Members may not at any time exceed the number fixed in accordance with this Constitution. Any person appointed under this rule holds office until the next annual general meeting. Any person appointed under this rule is eligible for election at that annual general meeting.
33. Consent to act as Director
The Foundation contravenes this Article if a person:
(a) Does not give the Foundation a signed consent to act as a Director of the Foundation before being appointed; and
(b) The Foundation must keep the consent.
34. Remuneration of Directors
A Director may not be paid any remuneration for services as a Director.
35. Reimbursement of expenses
Subject to Board approval, a Director may be reimbursed out of the funds of the Foundation for their reasonable travelling, accommodation and other expenses incurred when travelling to or from meetings of the Board or a Committee or when otherwise engaged on the affairs of the Foundation.
36. Payments to Directors
The Board must approve any payment to a Director.
37. Director’s interests
37.1 Qualification of Director’s interests
Neither the holding of office as a Director nor the fiduciary relationship resulting from holding that office shall:
(a) Disqualify any Member of the Foundation from holding any office or place of profit (other than that of auditor) in the Foundation;
(b) Disqualify any Director from entering into any arrangement, contract or dealing with the Foundation in any capacity;
(c) Avoid or vitiate any arrangement, contract or dealing entered into by or on behalf of the Foundation in which a Director is any way interested; or
(d) Render any Director or any corporation of which a Director is an officer or Member or in any way interested or any partnership of which a Director is a Member or in any way interested liable to account for any profit arising out of the holding of any such office or place of profit or any such arrangement, contract or dealing.
37.2 Notice of material personal interest
Notices of material personal interest given by Directors must:
(a) Give details of the nature and extent of the Director’s interest and the relation of the interest to the affairs of the Foundation;
(b) Be given at a Directors’ meeting as soon as practicable after the Director becomes aware of their interest in the matter; and
(c) Be recorded in the minutes of the Directors’ meeting at which the notice is given.
37.3 Entitlement to vote and be counted
Subject to the Act, a Director who is any way interested in any arrangement, contract or dealing as referred to in Article 36.2 (whether existing or proposed) may vote in respect of the arrangement, contract or dealing at a meeting of the Board and may be counted in a quorum present at such meeting.
37.4 Authority to execute documentation
A Director may affix or attest the affixation of the Seal to any instrument or sign or execute any document notwithstanding any interest which the Director has in the subject matter of that instrument or document or any other office or place of profit held by the Director.
37.5 Defects in appointments
All acts done by any meeting of the Directors or of any subcommittee shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any such Member or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director or Member of the subcommittee.
The Directors may delegate any of their powers in accordance with the Act.
39.1 Delegation to a committee
The Board may delegate any of its powers to a committee or committees consisting of such number of their Directors and/or other persons as it determines. A committee may consist of one or more persons.
39.2 Power of a committee
A committee to which any powers have been so delegated must exercise the powers delegated in accordance with any directions of the Board.
39.3 Obligations and entitlements apply
Articles 9, 12 and 13 apply to any committee as if each reference in those Articles to the Directors was a reference to the Members of the committee and each reference to a meeting of Directors was to a meeting of the committee.
39.4 Committee quorum
The number of Members whose presence at a meeting of the committee is necessary to constitute a quorum is the number determined by Board and, if not so determined, is two. Unless the Board determines otherwise, the quorum need only be present at the time when the meeting proceeds to business.
39.5 Committee minutes
The minutes of all the proceedings and decisions of every committee must be made, entered and signed in the same manner in all respects as minutes of proceedings of the Directors are required by the Act to be made, entered and signed.
Any Member of the Board may resign at any time from Membership of the Board by notice in writing delivered to the Secretary, but such resignation only takes effect at the time when such notice is received by the Secretary unless some later date is specified in the notice when it shall take effect on the later date.
41.1 Removal obligations and entitlements
A Member of the Board may be removed from office by ordinary resolution of the Members at a general meeting of the Foundation convened for that purpose. At any such general meeting the Member of the Board must be given the opportunity to fully present their case either orally or in writing or partly by either or both of these means.
41.2 Retention to meeting’s end
A Member of the Board who ceases to be a Member of the Board under Article 40.1 retains office until the dissolution or adjournment of the general meeting at which the Member of the Board is removed.
In addition to the circumstances in which the office of a Member of the Board becomes vacant by virtue of the Act, and subject to resolution of the Board, the office becomes vacant if that Member:
(a) Becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health;
(b) Becomes a bankrupt under the Bankruptcy Act 1966;
(c) Is convicted of a criminal offence; and
(d) Is disbarred or disqualified by the Australian Securities and Investment Commission from being a Director or office bearer of either a proprietary limited or a public Foundation.
43. CHAIRPERSON AND DEPUTY CHAIRPERSON
43.1 Appointment to office
Subject to Article 42.3, the Board chooses the Chairperson and Deputy Chairperson from the Members of the Board at the annual general meeting.
43.2 Board to appoint Chairperson and Deputy Chairperson
The Board has the sole power at any time and from time to time to appoint any one of its Members as Chairperson and Deputy Chairperson and to remove any Member of the Board appointed under this Constitution from any of those offices but not from the office of Member of the Board.
The Chairperson shall if present, able and willing, preside as Chairperson at all meetings of the Board and if:
(a) There is no such Chairperson;
(b) The Chairperson is not present within 15 minutes after the time appointed for the meeting; or
(c) The Chairperson is unable or unwilling to preside, then the Deputy Chairperson, if present at the meeting, able and willing or in the absence or unwillingness of both of them a Member of the Board, appointed by the meeting, shall act as Chairperson of the meeting.
The Chairperson and the Deputy Chairperson of the Board may resign at any time from such office by notice in writing delivered to the Secretary but such resignation only takes effect at the time when such notice is received by the Secretary unless some later date is specified in the notice when it shall take effect on and from that later date.
44. Alternate Directors
44.1 Director may appoint an alternate Director
A Director may:
(a) With the approval of a majority of the other Directors (if any), appoint a person (whether a member of the Foundation or not); or
(b) Without the need for the approval of the other Directors, appoint another Director, to be an alternate Director in the Director’s place during any period that the Director thinks fit.
44.2 Entitlement to notice of meetings
An alternate Director is entitled to notice of meetings of the Directors and, if the appointer is not present at such a meeting, is entitled to attend and vote in the Director’s stead.
44.3 Powers of alternate Directors
An alternate Director may exercise any powers which the appointer may exercise. The exercise of any power by the alternate Director (including signing a document) is taken to be the exercise of the power by the appointer. The exercise of any power by the alternate Director is as agent of the Foundation and not as agent of the appointer. Where the alternate is another Director, that Director is entitled to cast a deliberative vote on the Director’s own account and on account of each person by whom the Director has been appointed as an alternate Director.
44.4 Termination of appointment of alternate Director
The appointment of an alternate Director:
(a) May be terminated at any time by the appointer even if the period of the appointment of the alternate director has not expired; and
(b) terminates automatically if the appointer vacates office as a director.
44.5 Appointment effected by notice in writing
An appointment or the termination of an appointment of an alternate Director must be effected by service on the Foundation of a notice in writing signed by the Director making the appointment.
45. Procedures relating to Board meetings
45.1 Board meetings
The Board may meet together, upon each Member of the Board being given reasonable notice, for the dispatch of business, adjourn and otherwise regulate its meetings as it thinks fit.
45.2 Convening meetings
A Director may at any time, and the Secretary must on the written request of a Director, convene a meeting of the Board, giving every Director reasonable notice of the place, date and time of the meeting.
Until otherwise determined by the Board, not less than two (2) Members of the board in office at that time must be present to form a quorum.
45.4 Notice of meeting
Notice is deemed to have been given to a Member, and all Members are hereby deemed to have consented to the method of giving notice, if notice is sent by mail, personal delivery, facsimile transmission or by electronic mail to the usual place of residence, fax number or electronic address of the Member (if any fax number or electronic address is notified to the Foundation) or at any other address given to the Secretary by the Member from time to time subject to the right of the Member to withdraw such consent within a reasonable period before a meeting.
46. Meetings by telephone or other means of communication
The Board may meet either in person or by telephone or by other means of communication consented to by all Members of the Board subject to the right of a Member of the Board to withdraw their consent within a reasonable period before a meeting. A meeting conducted by telephone or other means of communication is deemed to have been held at the place agreed upon by the Members of the Board attending the meeting, provided that at least one of the Members present at the meeting is at that place for the duration of the meeting.
47. Votes at meetings
Questions arising at any meeting of the Board are decided by a majority of votes. The Chairperson of the meeting of the Board shall have a second or casting vote, in addition to the deliberative vote, in the event of an equality of votes.
48. Proxy voting
48.1 A person who is present at a meeting of Directors as a proxy for another Director has one vote for each absent Director who would be entitled to vote if present at the meeting and for whom that person is a proxy. That person may also cast any vote they are entitled to cast in their own capacity as a Director.
A Director may attend and vote by proxy at a meeting of the Directors if the proxy:
(a) Is another Director; and
(b) Has been appointed in writing signed by the appointer.
The appointment may be general or for one or more particular meetings.
49. POWERS AND DUTIES OF THE BOARD
49.1 Scope of Board Power
The Board may exercise all the powers of the Foundation that are not, by the Act or by this Constitution, required to be exercised by the Foundation in general meeting.
49.2 Board to manage Foundation
Subject to this Constitution, the Board shall have the power to perform all acts and do all things that appear to the Board to be necessary or desirable for the proper management of the Foundation.
49.3 Provisions of Board power
Without limiting the generality of Article 45.1, the Directors may exercise all the powers of the Foundation:
(a) To borrow money, to charge any property or business of the Foundation or all or any of its uncalled capital;
(b) To issue debentures or give any other security for a debt, liability or obligation of the Foundation or of any other person.
50. Appointment of attorneys
50.1 Board may appoint power of attorney
The Directors may, by power of attorney, appoint any person to be the attorney of the Foundation for the purposes and with the powers, authorities and discretions held by the Directors for the period and subject to the conditions that they think fit.
50.2 Limiting power of attorney
Any appointment under Article 46.1 may be made on terms for the protection and convenience of persons dealing with the attorney as the Directors think fit and may also authorise the attorney to delegate all or any of the powers, authorities and discretions vested in the attorney.
The Directors must direct minutes of meetings made and kept in accordance with the Act.
52. Written resolutions
52.1 Date, time and effect of a resolution
If a document:
(a) Is sent to all those entitled to receive notice of a meeting at which a resolution could be put;
(b) contains a statement that the signatories to it are in favour of that resolution;
(c) the terms of the resolution are set out or identified in the document; and
(d) has been signed by a majority of the directors entitled to vote on that resolution,
a resolution in those terms is passed on the day and at time at which the document was signed by a majority of directors and the document has effect as a minute of the resolution.
52.2 Resolutions signed in different times and places
For the purposes of Article 48.1:
(a) Two (2) or more separate documents containing statements in identical terms each of which is signed by one or more directors are together taken to constitute one document containing a statement in those terms signed by those directors at the time at which the last of those documents to be signed was signed by a director;
(b) A fax or other electronic transmission which is received by the Foundation or an agent of the Foundation and is sent for or on behalf of a Director is taken to be signed by that director not later than the time of receipt of the transmission by the Foundation or its agent in legible form.
53. INSPECTION OF RECORDS
53.1 Directors’ authority
The Directors may authorise a Member to inspect books of the Foundation to the extent, at the time and places and under the conditions, the Directors consider appropriate.
53.2 Member preclusion
A Member (other than a Director) does not have the right to inspect any document of the Foundation except as provided by the Act or as authorised by the Directors.
54. SECRETARIES AND OTHER OFFICERS
54.1 Foundation Secretary
The Foundation Secretary holds office on such terms and conditions as to remuneration and otherwise as the Board determines.
54.2 Other salaried officers
The Board may appoint such officers and employees at such salaries for such periods and on such terms as it thinks fit and may subject to conditions of the employment of such officers and employees dispense with their services and re-appoint or appoint other officers and employees as it thinks fit.
The Board may appoint a person with appropriate standing in the community as patron of the Foundation, and until otherwise determined by the Foundation in general meeting, shall reserve the appointment for the Senior Traditional Owner of the Land as acknowledged by the relevant Indigenous community and
the appropriate Aboriginal Cultural Heritage Corporation.
56. THE SEAL
56.1 Foundation Seal is optional
The Foundation may have a Seal.
56.2 Affixing the Seal
If the Foundation has a Seal, the Board is to provide for its safe custody and it should only be used by the authority of the Board. Every instrument to which the Seal is affixed is to be signed by a Member of the Board and countersigned by the Secretary or by a second Member of the Board or by another person appointed by the Board for the purpose. The Board may determine either generally or in any particular case that a signature may be affixed by a mechanical means specified in the determination.
56.3 Execution of documents without a Seal
The Foundation may execute a document, including a deed, by having the document signed by:
(a) Two (2) Members of the Board;
(b) A Member of the Board and the Secretary; and
if the Foundation executes a deed, the document is to be expressed to be executed as a deed and be executed in accordance with the appropriate procedures set out in Article 51.2 or this Article.
56.4 Other ways of executing documents
Notwithstanding the provisions of Articles 51.2 and 51.3, any document including a deed, may also be executed by the Foundation in any other manner permitted by law.
57. Indemnity and insurance
57.1 Indemnity of officers
Every person who is or has been:
(a) A Director; or
(b) A Secretary, or
(c) An executive officer of the Foundation,
is entitled to be indemnified out of the property of the Foundation against:
(d) Every liability incurred by the person in that capacity (except a liability for legal costs); and
(e) All legal costs incurred in defending or resisting (or otherwise in connection with) proceedings, whether civil or criminal or of an administrative or investigatory nature, in which the person becomes involved because of that capacity,
(f) The Foundation is forbidden by statute to indemnify the person against the liability or legal costs; or
(g) An indemnity by the Foundation of the person against the liability or legal costs would, if given, be made void by statute.
The Foundation may pay or agree to pay, whether directly or through an interposed entity, a premium for a contract insuring a person who is or has been a Director or Secretary or an executive officer of the Foundation against liability incurred by the person in that capacity, including a liability for legal costs, unless:
(a) The Foundation is forbidden by statute to pay or agree to pay the premium; or
(b) The contract would, if the Foundation paid the premium, be made void by statute.
The Board will ensure that the Secretary establishes a mechanism that will properly and effectively deal with complaints made by members of the public and grievances by employees of the Foundation.