Constitution
Healing Highway Pty Limited
ACN 638939250
Table of contents
Rule Page
1 Company’s name 1
2 Company’s objects 1
3 Company’s powers 1
4 Not for Profit 2
5 Shares 2
5.1 Share capital 2
5.2 Dealing with shares 3
5.3 Transfer of shares 3
6 Winding up 3
7 Membership 3
8 When a person ceases to be eligible to be a member 4
8.1 Not eligible to be a member 4
8.2 Power of attorney 4
9 Disciplining members 5
10 General meetings 6
10.1 Calling general meetings 6
10.2 Notice of general meetings 7
10.3 Quorum at general meetings 7
10.4 Chair of general meetings 8
10.5 Use of technology at general meetings 8
10.6 Conducting and adjourning general meetings 9
10.7 Decisions at general meetings 10
10.8 Voting rights 11
10.9 Representation at general meetings 11
10.10 Resolutions without meetings 13
11 Directorship 13
11.1 Number of directors 13
11.2 Election and appointment of directors 14
11.3 Election of chair 14
11.4 Term of office 14
11.5 When office of director becomes vacant 15
11.6 Power of attorney 15
11.7 Interested directors 16
11.8 Duties of directors 16
11.9 Powers of directors 17
11.10 Proceedings of directors 17
11.11 Convening meetings of directors 18
11.12 Notice of meetings of directors 18
11.13 Quorum at meetings of directors 19
11.14 Chair of directors 19
11.15 Decisions of directors 19
11.16 Circular resolutions of directors 20
11.17 Committees of directors 20
11.18 Delegation to individual directors 20
11.19 Validity of acts 21
12 Indemnity and insurance 21
12.1 Persons to whom clauses 12.2 and 12.4 apply 21
12.2 Indemnity 21
12.3 Extent of indemnity 21
12.4 Insurance 22
12.5 Savings 22
13 Financial and related record 22
14 Notices 22
14.1 How notices may be given 22
14.2 When taken as given 23
14.3 When member has no registered address 23
15 Definitions and interpretation 23
15.1 Definitions 23
15.2 Interpretation 23
15.3 Headings 24
15.4 Reading this constitution with the Corporations Act 24
Healing Highway Pty Ltd
A company limited by shares
Constitution
1 Company’s name
The name of the company is Healing Highway Pty Ltd.
2 Company’s objects
The company is established to pay and apply its income and property to or for, and otherwise promote, such objects and purposes which are public charitable purposes and which, as decided by the directors, encourage, promote and support Healing Highway and its performing activities and other activities, including (but not limited to) the following objects and purposes:
To organise community gatherings, musical entertainment events and performances for communities within Australia affected by bushfires, floods, droughts and other calamities.
To advance health, social and public welfare through the enjoyment of music and community engagement.
To arrange engagement activities at organised gatherings advancing health, social and public welfare.
To provide and support a forum for positive social involvement by members of the affected community to share their personal experiences.
To promote and encourage public discourse motivating emotional and economic community development and recovery.
To provide musical performance opportunities to local musicians.
To engage conductors, performers and any other persons required for the carrying out of organised gatherings, musical entertainment events and performances in affected communities.
To collaborate with any persons, organisations or institutions for the furtherance of organised gatherings, musical entertainment events and performances.
3 Company’s powers
Subject to clause 4, the company has the following powers, which may only be used to carry out its object(s) set out in clause 2:
the powers of an individual, and
all the powers of a company limited by shares under the Corporations Act.
4 Not for Profit
The company’s income and property must be applied solely towards promoting the company’s objects.
No part of the income or property may be paid, transferred or distributed, directly or indirectly, by way of dividend, bonus, fee or otherwise, to any of the members or directors.
This clause 4 does not prohibit:
payment approved by the directors for:
out-of-pocket expenses incurred by a director in performing a duty as a director of the company; or
a service rendered to the company by a director in a professional or technical capacity where:
the provision of the service has the prior approval of the directors; and
the amount payable is not more than an amount which commercially would be reasonable payment for the service;
payment approved by the directors for any other service rendered to the company by a director in a professional, technical or other capacity;
payment:
in good faith to any member for goods supplied in the ordinary and usual course of business;
of reasonable and proper interest on money borrowed from a member; or
of reasonable and proper rent for premises let by any member to the company;
indemnification of, or payment of premiums on contracts of insurance for, any director to the extent permitted by law and this constitution.
5 Shares
Share capital
Subject to this constitution, the directors may issue shares to any person at any time, and they may do so on the terms and conditions they think fit.
The directors may only issue ordinary shares in accordance with clause 5.1a).
All shares issued in accordance with clause 5.1a) shall be $1.00 each.
Dealing with shares
Shares in the company may not be transferred or otherwise dealt with except as set out in this constitution.
Transfer of shares
Subject to this constitution, a member may transfer all or any of the member's shares by an instrument in writing in any usual form or in any other form that the directors approve.
A member may only transfer the member’s shares to a transferee who has been approved by the directors.
The transfer price for the shares shall be $1.00 each.
A transferor of shares remains the holder of the shares transferred until the transfer is registered and the name of the transferee is entered in the register of members in respect of the shares.
6 Winding up
If the company is wound up, any surplus assets must not be distributed to a member or a former member of the company, unless that member or former member is a charity described in clause 6b).
Subject to the Corporations Act and any other applicable Act, and any court order, any surplus assets that remain after the company is wound up must be distributed to one or more charities:
with charitable purpose(s) similar to, or inclusive of, the purpose(s) in clause 2; and
which also prohibit the distribution of any surplus assets to its members to at least the same extent as the company.
The decision as to the charity or charities to be given the surplus assets must be made by a special resolution of members at or before the time of winding up. If the members do not make this decision, the company may apply to the Supreme Court to make this decision.
7 Membership
Subject to this constitution, the members of the company are its shareholders.
Every application for membership of the company must be at the invitation of the directors and every applicant must be proposed by another member. The application for membership must be:
made in writing to the directors and signed by the applicant and the proposer; and
in the form (if any) prescribed by the directors.
At the next meeting of the directors after the receipt of an application for membership, the directors must consider the application and decide whether to admit or reject the admission of the applicant. The directors need not give any reason for rejecting an application.
An applicant for membership who is admitted to membership in accordance with this constitution shall, on admission to membership, be issued with one share in the company.
A member may hold more than one share but shall not be entitled to any greater powers than if he or she held only one share.
8 When a person ceases to be eligible to be a member
Not eligible to be a member
A person immediately ceases to be eligible to be a member if the person:
dies;
becomes of unsound mind or a person who is, or whose estate is, liable to be dealt with in any way under a law relating to mental health;
becomes bankrupt or insolvent or makes any arrangement or composition with his or her creditors;
about whom a resolution is made that they have ceased to be eligible to be a member under clause 9; or
becomes, if the directors so decide in their absolute discretion, an untraceable member because the person has ceased to reside at, attend or otherwise communicate with his or her registered address.
Power of attorney
Immediately on a person ceasing to eligible to be a member, the company is appointed as attorney for that person to do all things necessary to affect the transfer of that person’s shareholding to:
such other member; or
such applicant for membership (subject to admission to membership);
as the directors in their absolute discretion determine.
The directors shall do all things reasonably required to affect the transfer and to ensure that, except for the least possible period as a result of the cessation of membership, no member holds more than one share at any one time.
Disciplining members
In accordance with this clause, the directors may resolve that a member has ceased to be eligible to be a member if the directors consider that:
the member has breached this constitution, or
the member’s behaviour is causing, has caused, or is likely to cause harm to the company
At least 14 days before the directors’ meeting at which a resolution under clause 9a) will be considered, the secretary must notify the member in writing:
that the directors are considering a resolution that a member has ceased to be eligible to be a member;
that this resolution will be considered at a directors’ meeting and the date of that meeting;
what the member is said to have done or not done; and
that the member may provide an explanation to the directors, and details of how to do so.
Before the directors pass any resolution under clause 9a), the member must be given a chance to explain or defend themselves by:
sending the directors a written explanation before that directors’ meeting, and/or
speaking at the meeting.
After considering any explanation under clause 9c), the directors may:
take no further action
resolve that the member has ceased to be eligible to be a member; or
require the matter to be determined at a general meeting.
The secretary must give written notice to the member of the decision under clause 9d) as soon as possible.
Disciplinary procedures must be completed as soon as reasonably practical.
10 General meetings
Calling general meetings
A general meeting may be convened by:
the directors by ordinary resolution of the board;
members with at least 5% of the votes that may be cast at a general meeting, in accordance with section 249F of the Corporations Act; or
the court on application by any director or any member who would be entitled to vote at the general meeting, if it is impracticable to call the meeting in any other way, in accordance with sections 249G and 1319 of the Corporations Act.
The directors must call a general meeting if requested by the prescribed number of members in accordance with section 249D of the Corporations Act.
If the directors do not call a general meeting within 21 days after a request by members under clause 10.1b), then members with more than 50% of the votes of all of the members who made the request under clause 10.1b) may convene a general meeting within three months of the request, in accordance with section 249D of the Corporations Act.
A general meeting convened under section 249D of the Corporations Act:
may not be postponed beyond the date by when section 249D requires it to be held; and
may not be cancelled without the consent of the member or members who requested it.
Subject to clause 10.1d), the directors may postpone, cancel or change the venue for a general meeting by giving notice not later than five Business Days before the time at which the general meeting was originally scheduled to be held, to each person who is at the date of the notice:
a member;
a director; or
an auditor of the company,
and in the case of a postponement or change of venue, specifying the new date, time and place of the general meeting.
A general meeting convened under section 249D of the Corporations Act may not be postponed beyond the date by which section 249D requires it to be held and may not be cancelled without the consent of the member or members who requested it.
Notice of general meetings
Notice of every general meeting must be given in any manner authorised by clause 14 to:
every member, except a member who has not supplied the company with an address in Australia for giving notices; and
the auditor.
No other person is entitled to receive notice of general meetings.
A notice of a general meeting must:
specify the date, time and place of the meeting;
if the meeting is to be held in two or more places, in accordance with clause 10.5b), the technology that will be used to facilitate the meeting; and
except as provided by the Corporations Act, state the general nature of the business to be transacted at the meeting.
A person may waive notice of a general meeting by written notice to the company.
The non-receipt of notice of a general meeting or proxy form by, or a failure to give notice of a general meeting or a proxy form to, any person entitled to receive notice of a general meeting under this clause 10.2 does not invalidate any act, matter or thing done or resolution passed at the general meeting if:
the non-receipt or failure occurred by accident or error; or
before or after the meeting, the person:
has waived or waives notice of that meeting under clause 10.2c); or
has notified or notifies the company of the person’s agreement to that act, matter, thing or resolution by written notice to the company.
A person’s attendance at a general meeting waives any objection that person may have to:
a failure to give notice, or the giving of a defective notice, of the meeting unless, at the beginning of the meeting, the person objects to the holding of the meeting; and
the consideration of a particular matter at the meeting which is not within the business referred to in the notice of the meeting, unless the person objects to considering the matter when it is presented.
Quorum at general meetings
No business may be transacted at a general meeting, except the election of a chair and the adjournment of the meeting, unless a quorum of members is present when the meeting proceeds to business.
A quorum consists of:
if the members have fixed a number for the quorum, that number of members; and
in any other case, 3 members,
present at the meeting in person, by proxy, by attorney or as representing a corporation.
If a quorum is not present within 30 minutes after the time appointed for a general meeting:
where the meeting was convened on the requisition of members, the meeting must be dissolved; or
in any other case:
the meeting stands adjourned to the day, and at the time and place, that the directors decide or, if the directors do not make a decision, to the same day in the next week at the same time and place; and
if, at the adjourned meeting, a quorum is not present within 30 minutes after the time appointed for the meeting, the meeting must be dissolved.
Chair of general meetings
The chair of directors must (if present within 15 minutes after the time appointed for the meeting and willing to act) preside as chair at each general meeting.
If at a general meeting:
there is no chair of directors;
the chair of directors is not present within 15 minutes after the time appointed for the meeting; or
the chair of directors is present within that time but is not willing to act as chair of the meeting,
the members present must elect as chair of the meeting:
another director who is present and willing to act; or
if no other director present at the meeting is willing to act, a member who is present and willing to act.
Use of technology at general meetings
Subject to the Corporations Act, a general meeting may be convened at two or more venues, provided that the form of technology used provides the members participating at each venue the reasonable ability to participate in the meeting at the same time.
Where a general meeting is held at two or more venues using any form of technology:
a member participating in the meeting is taken to be present in person at the meeting;
the provisions of this constitution relating to general meetings apply, so far as they can and with any necessary changes, to general meetings held using that technology; and
the meeting is to be taken to be held at the place determined by the chair provided that at least one of the members present at the meeting was at the place for the duration of the general meeting.
If the technology used in clause 10.5a) encounters a technical difficulty, whether before or during the general meeting, which results in a member not being able to participate in any part of the meeting, the chair may, subject to the Corporations Act and clause 10.3 (Quorum at general meetings):
allow the meeting to continue; or
adjourn the meeting either for a reasonable period of time as may be required to fix the technology or to such other date, time and location as the chair of the meeting considers appropriate.
For the avoidance of doubt, where the chair has allowed the general meeting to continue in accordance with clause 10.5c)(1), any resolution passed at that meeting is valid.
Conducting and adjourning general meetings
A question arising at a general meeting relating to the order of business, procedure or conduct of the meeting must be referred to the chair of the meeting, whose decision is final.
The chair of a general meeting may, and must if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting except the business left unfinished at the meeting from which the adjournment took place.
Where a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as for an original meeting.
Except as provided by clause 10.6c), it is not necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
Where a meeting is adjourned, the directors may change the venue of, or postpone or cancel, the adjourned meeting, unless the meeting was called and arranged to be held by the members or the court under the Corporations Act. If a meeting is called and arranged to be held under section 249D of the Corporations Act, the directors may not postpone it beyond the date by which section 249D requires it to be held and may not cancel it without the consent of the requisitioning member.
Decisions at general meetings
Except where by law a resolution requires a special majority, questions arising at a general meeting must be decided by a majority of votes cast by the members present at the meeting. Such a decision is for all purposes a decision of the members.
Where the votes on a proposed resolution are equal:
the chair of the meeting does not have a second or casting vote; and
the proposed resolution is taken as lost.
A resolution put to the vote of a general meeting must be decided on a show of hands unless, before the vote is taken or before or immediately after the declaration of the result of the show of hands, a poll is demanded by:
the chair of the meeting;
at least 2 members present and with the right to vote on the resolution; or
a member or members present at the meeting and representing at least 5% of the total voting rights of all the members entitled to vote on the resolution on a poll.
A demand for a poll does not prevent a general meeting continuing for the transaction of any business except the question on which the poll has been demanded.
Unless a poll is duly demanded, a declaration by the chair of a general meeting that a resolution has on a show of hands been carried or carried unanimously, or carried by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the company, is conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
If a poll is duly demanded at a general meeting, it must be taken in such manner, and either at once or after an interval or adjournment or otherwise, as the chairperson of the meeting directs. The result of the poll is the resolution of the meeting at which the poll was demanded.
A poll demanded at a general meeting on the election of a chair of the meeting or on a question of adjournment must be taken immediately.
The demand for a poll may be withdrawn.
Voting rights
Subject to this constitution, at a general meeting every member present in person or by proxy, attorney or representative has one vote and one vote only.
A proxy, attorney or representative is entitled to a separate vote for each member the person represents, in addition to any vote the person may have as a member in his or her own right.
An objection to the qualification of a person to vote at a general meeting must be:
raised before or at the meeting at which the vote objected to is given or tendered; and
referred to the chair of the meeting, whose decision is final.
A vote not disallowed by the chair of a meeting under clause 10.8c) is valid for all purposes.
Representation at general meetings
Subject to this constitution, each member at a meeting of members may vote:
in person or, where a member is a body corporate, by its representative;
by proxy; or
by attorney.
A proxy, attorney or representative must be a member of the company.
A proxy, attorney or representative may be appointed for:
all general meetings;
any number of general meetings; or
a particular general meeting.
Unless otherwise provided in the instrument, an instrument appointing a proxy, attorney or representative is taken to confer authority:
to agree to a meeting being convened by shorter notice than is required by the Corporations Act or by this constitution;
to speak to any proposed resolution on which the proxy, attorney or representative may vote;
to demand or join in demanding a poll on any resolution on which the proxy, attorney or representative may vote;
even though the instrument may refer to specific resolutions and may direct the proxy, attorney or representative how to vote on those resolutions:
to vote on any amendment moved to the proposed resolutions and on any motion that the proposed resolutions not be put or any similar motion;
to vote on any procedural motion, including any motion to elect the chair, to vacate the chair or to adjourn the meeting; and
to act generally at the meeting; and
even though the instrument may refer to a specific meeting to be held at a specified time or venue, where the meeting is rescheduled or adjourned to another time or changed to another venue, to attend and vote at the re-scheduled or adjourned meeting or at the new venue.
An instrument appointing a proxy or attorney may direct the manner in which the proxy or attorney is to vote in respect of a particular resolution. Where an instrument contains such a direction, the proxy or attorney is not entitled to vote on the proposed resolution except as directed in the instrument.
Subject to clause 10.9g), an instrument appointing a proxy or attorney need not be in any particular form as long as it is in writing, legally valid and signed by the appointer or the appointer’s attorney.
A proxy or attorney may not vote at a general meeting or adjourned meeting or on a poll unless the instrument appointing the proxy or attorney, and the authority under which the instrument is signed or a certified copy of the authority, are received in the places or at the fax numbers, and before the times, specified for that purpose in the notice calling the meeting. In the notice:
the place may be the company’s office or another place and a fax number may be the fax number at the company’s office or another fax number; and
the time may be before the time for holding the meeting or adjourned meeting.
The directors may waive all or any of the requirements of clauses 10.9f) and g) and in particular may, on production of any other evidence the directors require to prove the validity of the appointment of a proxy or attorney, accept:
an oral appointment of a proxy or attorney;
an appointment of a proxy or attorney which is not signed or executed in the manner required by clause 10.9f); or
the deposit, tabling or production of a copy (including a copy sent by email) of an instrument appointing a proxy or attorney, or of the power of attorney or other authority under which the instrument is signed.
A vote given in accordance with the terms of an instrument appointing a proxy or attorney is valid despite the revocation of the instrument, or of the authority under which the instrument was executed, if the company has not received written notice of revocation by the time and at one of the places at which the instrument appointing the proxy or attorney is required to be received under clause 10.9g).
The appointment of a proxy or attorney is not revoked by the appointer attending and taking part in the general meeting but, if the appointer votes on a resolution, the proxy or attorney is not entitled to vote, and must not vote, as the appointer’s proxy or attorney on the resolution.
Resolutions without meetings
Subject to clause 10.10c), the company may pass a resolution without a general meeting being held, if all of the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document.
For the purposes of clause 10.10a):
the document may be sent to members in any manner described in clause 14 (Notices);
the resolution is passed when the last member signs;
separate copies of a document may be used for signing by members if the wording of the resolution and statement is identical in each copy;
a signature of a member transmitted to the company by fax or email is sufficient evidence of signature; and
where a share is held jointly, each joint member must sign.
Clause 10.10a) does not apply to a resolution to remove an auditor.
Where a document is signed in accordance with clause 10.10a) the document is to be taken as a minute of the passing of the resolution.
11 Directorship
Number of directors
There must be:
at least 3 directors; and
not more than 9 directors.
Election and appointment of directors
The members may elect a director by a resolution passed in a general meeting.
Each of the directors must be appointed by a separate resolution, unless:
the members present have first passed a resolution that the appointments may be voted on together, and
no votes were cast against that resolution.
A person is eligible for election as a director of the company if they:
are a member of the company, or a representative of a member of the company (appointed under clause 10.9);
are nominated by a member or representative of a member entitled to vote (unless the person was previously elected as a director at a general meeting and has been a director since that meeting),
give the company their signed consent to act as a director of the company, and
are not ineligible to be a director under the Corporations Act or the ACNC Act.
The directors may appoint a person as a director to fill a casual vacancy or as an additional director if that person:
is a member of the company, or a representative of a member of the company (appointed under clause 10.9)
gives the company their signed consent to act as a director of the company, and
is not ineligible to be a director under the Corporations Act or the ACNC Act.
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.
Election of chair
The directors must elect a director as the company’s elected chair.
Term of office
At each annual general meeting:
any director appointed by the directors to fill a casual vacancy or as an additional director must retire, and
at least one-third of the remaining directors must retire.
The directors who must retire at each annual general meeting under clause 11.4a)(2) 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.
Other than a director appointed under clause 11.2d), 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.
Each director must retire at least once every three years.
A director who retires under clause 11.4a)(2) may nominate for election or re-election, subject to clause 11.4f).
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
When office of director becomes vacant
In addition to the circumstances prescribed by the Corporations Act , the office of a director becomes vacant if the director:
ceases to be eligible to be a member of the company;
becomes of unsound mind or a person who is, or whose estate is, liable to be dealt with in any way under the law relating to mental health;
becomes bankrupt or insolvent or makes an arrangement or composition with his or her creditors;
is convicted on indictment of an offence and the directors do not within one month after that conviction resolve to confirm the director’s appointment or election (as applicable) to the office of director;
resigns as a director by giving written notice to the company;
are absent for [3] consecutive directors’ meetings without approval from the directors, or
become ineligible to be a director of the company under the Corporations Act or the ACNC Act.
Power of attorney
Immediately a director:
dies; or
vacates office under clause 11.5;
the company is appointed as attorney for that director to do all things necessary to affect the transfer of that director’s shareholding to such other director as the directors in their absolute discretion determine.
Interested directors
A director must disclose the nature and extent of any actual or perceived conflict of interest in a matter that is being considered at a meeting of directors (or that is proposed in a written resolution, a resolution without meetings and/or circular resolution):
to the other directors, or
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.
The disclosure of a conflict of interest by a director must be recorded in the minutes of the meeting.
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 written resolution, a resolution without meetings and/or circular resolution) must not, except as provided under clause 11.7d)
be present at the meeting while the matter is being discussed; or
vote on the matter.
A director may still be present and vote if:
their interest arises because they are a member of the company, and the other members have the same interest;
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;
their interest relates to a payment by the company under clause 12.2 (indemnity), or any contract relating to an indemnity that is allowed under the Corporations Act;
the Australian Securities and Investments Commission (ASIC) makes an order allowing the director to vote on the matter, or
the directors who do not have a material personal interest in the matter pass a resolution that:
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
says that those directors are satisfied that the interest should not stop the director from voting or being present.
Duties of directors
The directors must comply with their duties as directors under legislation and common law (judge-made law), and with the duties described in governance standard 5 of the regulations made under the ACNC Act which are:
to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable individual would exercise if they were a director of the company
to act in good faith in the best interests of the company and to further the charitable object(s) of the company set out in clause 2
not to misuse their position as a director
not to misuse information they gain in their role as a director
to disclose any perceived or actual material conflicts of interest in the manner set out in clause 11.7a);
to ensure that the financial affairs of the company are managed responsibly, and
not to allow the company to operate while it is insolvent.
Powers of directors
The directors are responsible for managing and directing the activities of the company to achieve the object(s) set out in clause 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.
The directors must decide on the responsible financial management of the company including:
any suitable written delegations of power, and
how money will be managed, such as how electronic transfers, negotiable instruments or cheques must be authorised and signed or otherwise approved.
The directors cannot remove a director or auditor. Directors and auditors may only be removed by a members’ resolution at a general meeting.
Proceedings of directors
The directors may meet together and adjourn and otherwise regulate their meetings as they think fit.
The contemporaneous linking together by telephone or other electronic means of a sufficient number of the directors to constitute a quorum constitutes a meeting of the directors. All the provisions in this constitution relating to meetings of the directors apply, so far as they can and with any necessary changes, to meetings of the directors by telephone or other electronic means.
A director who takes part in a meeting by telephone or other electronic means is taken to be present in person at the meeting.
A meeting by telephone or other electronic means is taken as held at the place decided by the chair of the meeting, as long as at least one of the directors involved was at that place for the duration of the meeting.
Convening meetings of directors
A director may convene a meeting of the directors whenever he or she thinks fit.
A secretary must, on the requisition of a director, convene a meeting of the directors.
Notice of meetings of directors
Subject to this constitution, notice of a meeting of directors must be given to each person who is at the time of giving the notice a director, except a director on leave of absence approved by the directors.
A notice of a meeting of directors:
must specify the time and place of the meeting;
need not state the nature of the business to be transacted at the meeting;
may be given immediately before the meeting; and
may be given in person or by post, telephone or other electronic means.
A director may waive notice of a meeting of directors by notifying the company to that effect in person or by post, telephone or other electronic means.
The non-receipt of notice of a meeting of directors by, or a failure to give notice of a meeting of directors to, a director does not invalidate any act, matter or thing done or resolution passed at the meeting if:
the non-receipt or failure occurred by accident or error;
before or after the meeting, the director:
has waived or waives notice of that meeting under clause 11.13c); or
has notified or notifies the company of his or her agreement to that act, matter, thing or resolution personally or by post, telephone, fax or other electronic means; or
the director appointed by the director attended the meeting.
Attendance by a person at a meeting of directors waives any objection which that person may have to a failure to give notice of the meeting.
Quorum at meetings of directors
No business may be transacted at a meeting of directors unless a quorum of directors is present at the time the business is dealt with.
Unless the directors determine otherwise, the quorum for a directors’ meeting is a majority (more than 50%) of directors.
A quorum must be present for the whole directors’ meeting.
If there is a vacancy in the office of a director then, subject to clause 11.13e), the remaining directors may act.
If the number of directors in office at any time is not sufficient to constitute a quorum at a meeting of directors, or is less than the minimum number of directors fixed under this constitution, the remaining directors must act as soon as possible to:
increase the number of directors to a number sufficient to constitute a quorum and to satisfy the minimum number of directors required under this constitution;
convene a general meeting of the company for that purpose, or
appoint additional directors,
and, until that has happened, may only act if and to the extent that there is an emergency requiring them to act.
Chair of directors
The directors may elect one of the directors as chair of directors and may decide the period for which that director is to be the chair.
The chair of directors must (if present within 10 minutes after the time appointed for the meeting and willing to act) preside as chair at each meeting of directors.
If at a meeting of directors:
there is no chair of directors;
the chair of directors is not present within 10 minutes after the time appointed for the meeting; or
the chair of directors is present within that time but is not willing to act as chairperson of the meeting,
the directors present must elect one of the directors as chair of the meeting.
Decisions of directors
A meeting of directors at which a quorum is present may exercise all the powers and discretions vested in or exercisable by the directors under this constitution.
Subject to this constitution, at such a meeting every director has one vote and one vote only.
Questions arising at a meeting of directors must be decided by a majority of votes cast by the directors present. Such a decision is for all purposes a decision of the directors.
Where the votes on a proposed resolution are equal:
the chair of the meeting does not have a second or casting vote; and
the proposed resolution is taken as lost.
Circular resolutions of directors
The directors may pass a circular resolution without a directors’ meeting being held.
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 11.16c) or clause 11.16d).
Each director may sign:
a single document setting out the resolution and containing a statement that they agree to the resolution, or
separate copies of that document, as long as the wording of the resolution is the same in each copy.
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.
A circular resolution is passed when the last director signs or otherwise agrees to the resolution in the manner set out in clause 11.16c) or clause 11.16d).
Committees of directors
The directors may delegate any of their powers to one or more committees consisting of the number of directors they think fit.
A committee to which any powers have been delegated must exercise the powers delegated in accordance with any directions given by the directors.
The provisions of this constitution that apply to meetings and resolutions of directors apply, so far as they can and with any necessary changes, to meetings and resolutions of a committee of directors.
Delegation to individual directors
The directors may delegate any of their powers to one director.
A director to whom any powers have been delegated must exercise the powers delegated in accordance with any directions given by the directors.
Validity of acts
An act done by a person acting as a director, a meeting of directors, or a committee of directors attended by a person acting as a director, is not invalidated merely because of:
a defect in the appointment of the person as a director;
the person being disqualified to be a director or having vacated office; or
the person not being entitled to vote,
if that circumstance was not known by the person, the directors or the committee (as applicable) when the act was done.
Indemnity and insurance
Persons to whom clauses 12.2 and 12.4 apply
Clauses 12.2 and 12.4 apply to:
each person who is or has been a director or executive officer (within the meaning of clause 12.2) of the company; and
any other officers or former officers of the company or of its related bodies corporate that the directors decide in each case.
Indemnity
The company must
indemnify; and
if requested by a person to whom this clause 12.2 applies, enter into a deed indemnifying,
on a full indemnity basis and to the full extent permitted by law, each person to whom this clause 12.2 applies for all losses or liabilities incurred by the person as an officer of the company or of a related body corporate including, but not limited to, a liability for negligence or for reasonable costs and expenses incurred:
in defending proceedings, whether civil or criminal, in which judgment is given in favour of the person or in which the person is acquitted; or
in connection with an application, in relation to those proceedings, in which the court grants relief to the person under the Law.
Extent of indemnity
The indemnity in clause 12.2:
is a continuing obligation and is enforceable by a person to whom clause 12.2 applies even though that person has ceased to be an officer of the company or of a related body corporate; and
operates only to the extent that the loss or liability is not covered by insurance.
Insurance
The company may, to the extent permitted by law:
purchase and maintain insurance; or
pay or agree to pay a premium for insurance,
for any person to whom this clause 12.4 applies against any liability incurred by the person as an officer of the company or of a related body corporate including, but not limited to, a liability for negligence or for reasonable costs and expenses incurred in defending proceedings, whether civil or criminal and whatever their outcome.
Savings
Nothing in clauses 12.2 or 12.4:
affects any other right or remedy that a person to whom those clauses apply may have in respect of any loss or liability referred to in those clauses; or
limits the capacity of the company to indemnify or provide insurance for any person to whom those clauses do not apply.
13 Financial and related record
The company must make and keep written financial records that:
correctly record and explain its transactions and financial position and performance, and
enable true and fair financial statements to be prepared and to be reviewed or audited (as required).
The company must also keep written records that correctly record its operations.
The company must retain its records for at least 7 years.
The directors must take reasonable steps to ensure that the company's records are kept safe.
14 Notices
How notices may be given
A notice may be given by the company to a member by:
delivering it to the member personally;
posting it by prepaid post to the member’s registered address; or
sending it to the member’s e-mail address.
When taken as given
A notice is taken as given by the company and received by the member:
if delivered, at the time of delivery;
if emailed, the day after it was sent (upon proof that the email was sent and not returned); and
if posted, on the second business day after it was posted.
When member has no registered address
If one or more members do not have a registered address in Australia, a notice addressed to the member or members and advertised in a daily national newspaper is taken to be duly given to the member or members at midday on the day on which the advertisement appears.
15 Definitions and interpretation
Definitions
In this constitution:
ACNC Act means the Australian Charities and Not-for-profits Commission Act 2012 (Cth)
business day means a day on which the major trading banks are open for business in Sydney, except a Saturday, Sunday or public holiday;
company means Healing Highway Pty Ltd;
Corporations Act means the Corporations Act 2001 (Cth);
company’s office means the company’s registered office;
directors means the company’s board of directors;
member means a member of the company;
registered address means a member’s address as notified to the company by the member and recorded in the company’s records;
secretary means a person appointed to perform the duties of a secretary of the company and includes an honorary secretary; and
State means New South Wales.
Interpretation
In this constitution unless the context requires otherwise:
references to notices include formal notices of meeting and all documents and other communications from the company to its members;
a reference to any legislation includes any amendment to that legislation, any consolidation or replacement of that legislation and any subordinate legislation made under it;
a reference to writing and written includes printing, lithography and other ways of representing or reproducing words in a visible form;
a word or expression defined in the Law has the same meaning unless it is defined differently; and
the singular (including defined terms) includes the plural and the plural includes the singular.
Headings
Headings are used for convenience only and do not affect the interpretation of this constitution.
Reading this constitution with the Corporations Act
The replaceable rules set out in the Corporations Act do not apply to the company.
While the company is a registered charity, the ACNC Act and the Corporations Act override any clauses in this constitution which are inconsistent with those Acts.