CONSTITUTION OF THE EDUCATION CONSULTANTS ASSOCIATION OF AUSTRALIA
A COMPANY LIMITED BY GUARANTEE
CHAPTER 1: DEFINITIONS
Definitions
1) The following words and expressions in this Constitution have the meanings hereby assigned to them unless such meanings are excluded by or are repugnant to the context or subject matter:
“Association” means the company called the Education Consultants Association of Australia.
“Board of Directors” means the Board of Directors of the Association constituted under this Constitution for the management and control of the Association and of its funds.
“Body Corporate” means a legal entity incorporated under the Law.
“By-laws” means the By-laws of the Association created in accordance with this Constitution.
“Chief Executive Officer” means the Chief Executive Officer appointed in accordance with this Constitution.
“Committee Member” means a member of a committee established under this Constitution.
“Director” means a natural person appointed to the Board of Directors in accordance with this Constitution.
“Education consultants” means
“Founding Member” means the original members of the Association. The By-Laws of the Association shall prescribed who such members are.
“General Meeting” means a General Meeting of the members of the Association lawfully convened and held in accordance with this Constitution.
“the Law” means the corporations law of the Commonwealth of Australia.
“Member” means a Body Corporate and/or a natural person who has complied with the Constitution and By-laws in relation to membership and who has paid all fees and subscriptions due.
“Month” means a calendar month.
“Officer” has the same meaning as defined in the Law and includes the Investigator and the Investigations Review Officer.
“Post” means any form of postage including but not limited to Prepaid Post, Parcel Post, Registered Mail, Courier, Business Post, Next Day Delivery.
“Prescribed Examination” means the examinations the Board of Directors may prescribe for candidates for admission as members of the Association or for a change in status in accordance with this Constitution.
“President” means the President of the Association.
“Register” means the register of members of the Association to be kept pursuant to the Law.
“Regulations” means the Regulations of the Association created in accordance with this Constitution.
“Written” and “In Writing” includes all modes of representing or reproducing words in a visible form.
Words importing the singular number include the plural number and words importing the plural number include the singular number.
Words importing the masculine gender include the feminine gender.
Headings are for ease of reference and shall not affect in any way the interpretation or construction of the Clause or Clauses to which they refer.
A reference to any legislation includes any subordinate legislation and any amendment, substitution, consolidation or re-enactment of that legislation or its subordinate legislation.
CHAPTER 2: NAME, REGISTERED OFFICE AND OBJECTS OF THE ASSOCIATION
Name
2) The name of the Association is the “Education Consultants Association of Australia “.
Registered Office
3) The Registered Office of the Association shall be in such place as the Board of Directors may from time to time appoint.
Objects
4) The objects for which the Association is established are:
1) To co-ordinate and co-operate with education consultants and all levels of government, education providers and the public service to support, promote, protect and maintain a body of education consultants.
2) To consider questions affecting the interests of and to protect and advance the status of members of the Association.
3) To prescribe and adopt standards for attaining and maintaining membership of the Association.
4) To acquire, preserve and disseminate information and statistics concerning matters of interest to members.
5) To promote the professional development of members.
6) To undertake, coordinate or sponsor research into matters of interests to members.
7) To promote members of the Association to the public, students, governments and education providers.
8) To accept grants, donations, gifts, subscriptions and other assistance in furtherance of the objects of the Association and to conform to any proper conditions upon which such grants and other payments may be made.
9) To communicate, affiliate or enter into other relations, whether formal or informal with other institutes, societies and associations having similar objects and purposes and to subscribe to become a member of and co-operate with any such.
10) To affiliate, amalgamate or enter into partnership or into any arrangement for union of interests, co-operation, joint adventure, reciprocal concession or otherwise with any body whether incorporated or un-incorporated, having objects of a like nature to those of the Association and whose Constitution prohibits the division of its income and property amongst its members at least to the same extent as is provided in this Constitution in relation to the Association.
11) To undertake and execute any trusts which may be conducive to any of the objects of the Association.
12) To purchase, take on lease or in exchange, hire or otherwise acquire any real or personal property rights or privileges necessary or convenient for the purposes of the Association.
13) To sell, improve, manage, develop, exchange, lease, dispose of, turn to account, or otherwise deal with all or any part of the property and rights of the Association.
14) To borrow or raise any money that may be required by the Association upon such terms and security as may be deemed advisable.
15) To invest the moneys of the Association not immediately required for its purposes in or upon such investments, securities, or property as may be thought fit, subject nevertheless to such condition (if any) as may for the time being be imposed or required by law and subject also as hereinafter provided.
16) To do all such other lawful things as may be incidental to or conducive to the attainment of the above objects.
5) The income and property of the Association, howsoever derived shall be applied solely towards the promotion of the objects of the Association as set forth in this Constitution, and no portion thereof shall be paid or transferred directly or indirectly by way of dividend, bonus, or otherwise howsoever by way of profit to the persons who at any time are or have been members of the Association, or to any of them, or to any person claiming through any of them. Nothing herein contained shall prevent the payment in good faith of remuneration to any officers or servants of the Association or to any member thereof in return for any services actually rendered to the Association.
Liability to members and Winding Up
6) The liability of the members is limited.
7) If the Association acts in contravention of any conditions of this Constitution, the liability of every Director of the Association shall be unlimited, and the liability of every member of the Association who has received any such dividend, bonus or other profit as aforesaid, shall likewise be unlimited.
8) Every member of the Association undertakes to contribute to the assets of the Association in the event of the same being wound up during the time that the member is a member, or within one year afterwards for payment of its debts and liabilities of the Association contracted before the time at which the member ceases to be a member, and of the costs charges and expenses of winding up the same, and for the adjustment of the rights of the contributory among themselves such amount as may be required not exceeding ten dollars, or in the case of the member’s liability becoming unlimited such other amount as may be required in pursuance to this Constitution.
9) If upon the winding up or dissolution of the Association there remains after the satisfaction of all its debts and liabilities any property whatsoever, the same shall not be paid to or distributed among the members, but shall be given or transferred to some other institution or institutions having objects similar to the objects of the Association; and which shall prohibit the distribution of its or their income and property among its or their members to an extent at least as great as is imposed on the Association under this Constitution, such institution or institutions to be determined by the members of the Association at or before the time of dissolution and in default thereof by the Chief Justice of the Supreme Court of Victoria or such other Judge of the Court as may have or acquire jurisdiction in the matter and if and so far as effect cannot be given to the aforesaid provision then to some charitable object.
CHAPTER 3: MEMBERS
Members
10) Every applicant for membership, including Founding Members, whether a body corporate or natural person shall comply with the requisites of this Constitution and By-laws and also comply with such other requirements as the Board of Directors may prescribe either generally or in any particular case.
11) Every applicant shall apply in the form and manner and pay the fees to the Association.
12) Every applicant shall agree that if admitted, they will be bound by the provisions of the Constitution of the Association, and of the By-laws and Regulations then in force or which may thereafter from time to time be in force.
13) The Board of Directors may in its discretion and without being required to assign any reason therefore refuse to accept any application for admission to membership of the Association.
14) Applicants whom comply with the requisites for membership, shall be entered in the Register and shall be members of the Association.
Special Cases
15) The Board of Directors may by resolution passed by a majority of not less than two-thirds of Directors present and voting, dispense with all or any of the requirements of this Constitution, the By-laws and other requirements the Board of Directors have prescribed regarding admission and admit any body corporate or natural person to membership of the Association in such status as it thinks fit or grant a change in status to any member:
(1) if that body corporate or natural person or member has extensive experience in education consulting; or
(2) if that body corporate or natural person or member has rendered valuable service in advancing the interests of education consulting; or
(3) for any special reason the Board of Directors deems sufficient.
Member status
16) The Board of Directors may at its discretion, establish different classes of members. Every applicant for a specific member class, whether a body corporate or natural person shall comply with the requisites of this Constitution and By-laws and also comply with such other requirements as the Board of Directors may prescribe either generally or in any particular case.
17) Every applicant shall apply in the form and manner and pay the fees to the Association.
18) The Board of Directors may in its discretion and without being required to assign any reason therefore refuse to accept any application for admission to a class of member.
19) A member of the Association may use whichever words or post-nominals the Board of Directors may prescribe as appropriate to the member’s status.
Life members
20) Any member who has rendered such services to the Association as would in the opinion of the Board of Directors entitle the member to the distinction or upon whom the Board of Directors desires to confer such distinction may be elected a Life Member by the Board of Directors.
21) A Life Member shall be entitled to all the privileges of membership without payment of the annual subscription.
Honorary members
22) Any person who is not a member of the Association may be elected an Honorary Member by the passing of a resolution by the Board of Directors.
23) The Board of Directors may revoke Honorary Membership at any time without ascribing any reason for so doing.
Resignation of members
24) A member wishing to resign membership shall forward a written resignation to the Association. The member shall return the Certificate or Certificates of Membership of the Association and shall pay all monies owing to the Association whereupon the member’s resignation may be accepted by the Association
25) (1) Notwithstanding Clause 24, no resignation shall be accepted from a member against whom an allegation of a breach or breaches of this Constitution is being investigated pursuant to Chapter 7 of the Constitution.
(2) Notwithstanding non-compliance with Clause 24, the Association may accept the resignation of a member.
Re-instatement of members
26) (1) Subject to sub-clause 26(2), a person whose name has been removed from the Register under this Constitution may apply in writing to the Association at any time for reinstatement.
(2) A person whose name has been removed from the Register due to disciplinary action by the Association or by any other body must apply in writing to the Board of Directors for reinstatement.
(3) An applicant may be reinstated upon such terms and conditions and upon giving such information and explanation as the Board of Directors may deem fit.
(4) If the Association rejects an application for reinstatement it shall give notice in writing of its decision.
(5) The applicant may within thirty days after the said notice of such decision is deemed to have been received give notice of appeal in writing stating the grounds of appeal to the Association. Every appeal shall be determined by the Board of Directors.
CHAPTER 4: GENERAL MEETINGS OF THE ASSOCIATION
Annual General Meeting (AGM)
27) The Association shall, in addition to any other meetings held by the Association, hold a General Meeting, to be called the “Annual General Meeting”, at such time not being later than the last day of the fifth month following the close of the preceding financial year and at such place which the Board of Directors shall determine.
28) (1) The Board of Directors may whenever it thinks fit, convene a General Meeting. This General Meeting shall be held at such place as the Board of Directors shall determine.
(2) Subject to the Law, the Board of Directors shall on the requisition of not less than two hundred members or 20 percent of the membership, whichever is the lessor, having at the date of the requisition a right to vote at general meetings forthwith convene a General Meeting of the Association as provided by the Law. This General Meeting shall be held at such place as the Board of Directors shall determine.
Business of AGM
29) Subject to the Law, a member wishing to bring before an Annual General Meeting any motion or business not being the ordinary annual business of the Association, for example the removal of a director, shall give notice thereof in writing to the Board of Directors not later than one month after the close of the financial year immediately preceding that Annual General Meeting. No motion or business (other than business brought forward by the Board of Directors) shall come before the meeting unless notice thereof has been given in accordance with this Clause.
Notice
30) (1) Not less than twenty-one days notice of every General Meeting specifying the place day and hour of the meeting and the general nature of the business to be dealt with shall be given to the members in the manner hereinafter provided.
(2) Not less than twenty-one days notice of every General Meeting at which it is proposed by the Association to pass a special resolution as defined by the Law specifying the place day and hour of the meeting and the intention to propose the resolution as a special resolution shall be given to the members in the manner hereinafter provided or in such manner (if any) as may be prescribed by the Association in General Meeting.
31) All notices may be served upon any member either personally or by sending the same through the post addressed to such member at the member’s address as entered in the Register, or may be given electronically if a member nominates an electronic address or in exceptional circumstance may be served by advertisement in at least one daily national newspaper if such notice be intended for all members of the Association. Notices of meeting served by advertisement in newspapers shall contain details of the nature and purpose of the meeting.
The accidental omission to give notice of a meeting to, or the non-receipt of such notice by any member shall not invalidate the proceedings of a meeting held in pursuance of such notice.
32) Notice of meetings of the Association shall be deemed to be sufficiently given if notice thereof be published in the Annual Report of the Association.
33) Notwithstanding anything contained in this Constitution, a notice of a General Meeting of the Association specifying an intention to propose a resolution as a special resolution shall be served by sending the same through the post. Notice in the Annual Report of the Association forwarded to each member shall constitute sufficient notice within the meaning of this Clause.
34) Any notice sent by post shall be deemed to have been served on the third working day following posting. Any notice sent electronically shall be deemed to have been received on the day of electronic transmission. Any notice given by advertisement shall be deemed to have been served on the day of issue of the newspaper in which the advertisement appears.
PROCEEDINGS AT GENERAL MEETINGS
Quorum
35) Eight members personally present and entitled to vote shall be a quorum for a General Meeting of the Association and no business shall be transacted at any General Meeting unless the requisite quorum shall be present for the commencement of the business.
36) For the purpose of determining whether a quorum of members is present, a person attending as a proxy, or as representing a member, shall be deemed to be a member.
Place of Meeting
37) For the purposes of this Constitution, a General Meeting may be held at two or more venues using any technology that gives members as a whole a reasonable opportunity to participate.
Chair of General Meeting
38) (1) Subject to sub-clause (2) hereof, the President or, in the President’s absence, the Vice President of the Association or, in the Vice President’s absence, the Treasurer of the Association or, in the absence of all the above office bearers a Director to be chosen by the members present shall be entitled to take the Chair at every General Meeting of the Association and, if at any meeting no person entitled to take the chair shall be present within fifteen minutes after the time appointed for holding such meeting or if such persons present decline to take the chair then the members present shall choose one of their number to be Chairman.
(2) The Chairman of the Annual General Meeting shall be the President of the Association for the period to which the Annual Report refers. In the absence of the President for that period, the Chairman shall be the most senior office bearer for that period present. The office bearers for the same period shall also be present at the Annual General Meeting for purposes of presenting their reports to the Annual General Meeting.
(3) The Treasurer who held office during the period to which an Annual Report refers or the Treasurer’s nominee shall attend the Annual General Meeting at which that Annual Report is presented.
Quorum not present
39) If a quorum is not present within fifteen minutes of the time appointed for the meeting:
(1) where the meeting was convened upon the requisition of members – the meeting shall be dissolved; or
(2) in any other case:
(a) the meeting stands adjourned to the same day in the next week at the same time and place or to such other day (not being more than fourteen days after such meeting) at such time and place as the Chairman of the meeting may appoint; and
(b) if at the adjourned meeting a quorum is not present within fifteen minutes from the time appointed for the meeting the meeting shall be dissolved.
VOTING AT GENERAL MEETINGS
Votes of members
40) Subject to the provisions of clauses 49 and 50 on a show of hands every member present in person and entitled to vote shall have one vote and upon a poll every member present in person or by proxy or by attorney and entitled to vote shall have one vote.
41) Votes may be given either personally or by proxy or by attorney as hereinafter provided.
42) (1) At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded:
(a) by the Chairman; or
(b) by at least five members present in person or by proxy.
(2) Unless a poll is so demanded, a declaration by the Chairman that a resolution has on a show of hands been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the minute book of the Association, shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
(3) The demand for a poll may be withdrawn.
43) (1) Subject to sub-clause (2) hereof, if a poll is demanded, it shall be taken in such manner and either at once or after an interval or adjournment or otherwise as the Chairman directs, and the result of the poll shall be the resolution of the meeting at which the poll was demanded. The demand for a poll shall not prevent the continuance of the meeting for the transaction of any business other than the question on which a poll has been demanded.
(2) A poll demanded on a question of adjournment shall be taken forthwith.
(3) A poll demanded on the election of a Chairman, where such an election is required, shall be taken forthwith.
Adjournment of Meeting
44) (1) The Chairman of a meeting may with the consent of any meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
(2) When a meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting.
(3) Except as provided by sub-clause (2) it is not necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
Proxies
45) (1) An instrument appointing a proxy shall be valid if the member appoints the proxy in writing or of the member’s attorney duly authorised appoints the proxy in writing. Such instrument of proxy may be for a specified meeting and any adjournment thereof.
(2) An instrument appointing a proxy may specify the manner in which the proxy is to vote in respect of a particular resolution and, where an instrument of proxy so provides, the proxy is not entitled to vote on the resolution except as specified in the instrument.
(3) An instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
(4) An instrument appointing a proxy shall be in the form or to the effect of the form prescribed by the By-laws.
46) An instrument appointing a proxy shall not be treated as valid unless the instrument, and the power of attorney or other authority (if any) under which the instrument is signed or a notarially certified copy of that power or authority, is deposited at the registered office of the Association, by not later than 4.00 p.m. on the last working day not less than 48 hours prior to the day of the meeting.
47) A vote given in accordance with the terms of an instrument of proxy or of a power of attorney is valid notwithstanding the previous death or unsoundness of mind of the member, the revocation of the instrument (or of the authority under which the instrument was executed) or of the power, if no prior notification in writing of the death, unsoundness of mind or revocation has been received at the registered office of the Association.
48) Immediately after the conclusion of the meeting for which the proxy instruments have been lodged, the proxy instruments shall be placed in an envelope sealed and signed by the Chairman of the meeting and shall be held, unopened, by the Association for one month after the close of the meeting, after which they shall be destroyed.
Casting vote of Chairman
49) In the case of an equality of votes, whether on a show of hands or on a poll, the Chairman of the meeting at which the show of hands takes place or at which the poll is demanded, in addition to the vote to which the Chairman may be entitled as a member, shall have a casting vote.
Members not entitled to vote
50) No member shall be entitled to vote on any question either personally or by proxy or by attorney at any General Meeting of the Association, or at a poll or in any postal ballot held by the Board of Directors or be counted in a quorum:
(1) who is an Honorary Member; or
(2) whose subscription or any other sum prescribed by the Board of Directors is overdue for three months; or
(3) whose membership is currently suspended by the Disciplinary Tribunal.
Postal Vote
51) The Board of Directors may at any time resolve that in lieu of submitting a proposal to a General Meeting it shall submit a resolution or resolutions to members by means of a postal ballot which ballot shall be conducted as nearly as practicable in the manner set forth herein and the result of such postal ballot shall have the same force and effect as a resolution passed at the General Meeting of members. This procedure may not be employed to pass special resolutions.
(1) Prior to sending to members the voting papers the Board of Directors shall appoint a panel of scrutineers, at least two of whom shall act as such.
(2) The Board of Directors shall cause voting papers to be posted to each member who would have been entitled, if present, to vote at a General Meeting held on the day of posting of the said voting papers to the address shown for that member in the Register. Such voting papers shall set out any resolutions proposed by the Board of Directors and shall contain full directions as to the method of voting.
(3) All members wishing to vote on any resolution must do so by voting in the manner indicated in the directions and by posting the voting papers to the Association addressed in the manner specified in the voting papers so as to be received by the Association within twenty-eight days of the date of posting to the member by the Association.
(4) Within seven days after the last day upon which votes can be received under sub-clause (3) the scrutineers or at least two of them shall meet and examine the voting papers.
(5) Envelopes containing the voting papers may be opened either before or at such meeting of the scrutineers but may only be opened in the presence of at least two of the scrutineers. The scrutineers shall reject the vote of any member who is not entitled to vote in a general meeting of the Association as set out in Clause 50 or who has failed to observe the directions mentioned in sub-clause (2) (unless in their opinion the member clearly indicated the way in which the member wished to vote) and they may reject any other vote which in their view ought properly to be rejected.
(6) The scrutineers shall as soon as practicable report the result of the voting to the President and shall include in such report a statement of the number of votes rejected by them and the reasons for such rejection. The President shall arrange for the result of the postal ballot to be given to members within reasonable time after the receipt of such report in such manner as the Board of Directors may determine. The report of the scrutineers as to the result of the voting shall be conclusive.
(7) A resolution passed by such ballot shall have the same effect as if it were a resolution passed at a General Meeting of members held on the date of the report of the scrutineers.
(8) Where for any reason the President is unable to exercise any powers granted to the position under this Clause the power shall be exercised by a Director appointed by the Board of Directors for that purpose.
CHAPTER 5: BOARD OF DIRECTORS
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Management and Control
52) The management and control of the Association and of its funds shall be vested in the Board of Directors which, in addition to the powers and authorities expressly conferred on it by this Constitution, may exercise all such powers and do all such acts and things as may be exercised and done by the Association which are not hereby or by the Law expressly directed or required to be exercised or done by the Association in a General Meeting and subject nevertheless to the provisions of the Law and this Constitution and to any resolution from time to time passed by the Association in General Meeting PROVIDED THAT no resolution shall invalidate any prior act of the Board of Directors which would have been valid if such resolution had not been passed.
Express powers of the Board of Directors
53) Without prejudice to the general powers conferred by Clause 52 and the other powers conferred by this Constitution, it is hereby expressly declared that the Board of Directors shall have the following powers on behalf of the Association:
(1) it may from time to time make, vary, amend, enlarge, revoke and repeal By-laws, and Regulations ancillary to but not inconsistent with this Constitution on all subjects not expressly reserved for the Association in a General Meeting including but not limited to the maintenance of sound practice and the promotion of the interests of the Association and of the industry and for the prevention of dishonourable practices and may prohibit such acts and regulate the conduct of members in that regard as it thinks fit and it may provide penalties for those members who may commit a breach thereof or who may not observe the provisions of any such By-laws and Regulations.
(2) it may prescribe conditions or qualifications (in addition to the requisites of this Constitution) for applicants for admission as members and for changes in the status of members, either generally or in any particular case;
(3) it may at its discretion appoint such Officers and Agents for permanent, temporary or special services as it may from time to time think fit and may determine their duties and fix their salaries or emoluments and may require security in such instances and to such amount as it shall think fit and it may appoint from time to time the Bankers and Legal Advisers of the Association. It may also in its discretion and subject to the law, remove or suspend such Officers and Agents;
(4) it may purchase, rent or otherwise acquire and furnish and equip suitable premises for the use of the Association;
(5) it may take cognisance of anything affecting the Association or the professional conduct of members and shall have power to bring before any meeting of the Association any matters which it considers material to the Association and may make any recommendations and take such action as it thinks fit in relation thereto;
(6) it may communicate from time to time with members, governments, education providers and other similar bodies;
(7) it shall each year circulate amongst the members a copy of the accounts and a report of the activities of the Association during the previous year and it may in its discretion print a list of members and such other information as it may deem of interest and circulate the same amongst the members;
(8) it may institute, conduct, defend, compound or abandon any legal proceedings by and against the Association or its Officers or otherwise concerning the affairs of the Association and also may compound and allow time for payment or satisfaction of any debts due or of any claims or demands by or against the Association;
(9) it may refer any claims or demands by or against the Association to arbitration and observe and perform every award made as a result of such arbitration;
(10) it may make and give receipts, releases and other discharges for moneys payable to the Association and for the claims and demands of the Association;
(11) it may invest and deal with any moneys of the Association upon such security and in such manner as it thinks fit and it may from time to time vary and call in such investments;
(12) it may borrow or raise money by bank overdraft or otherwise by the issue of debentures or any other securities founded or based upon all or any of the property and rights of the Association, or without any such security and upon such terms as to priority or otherwise as it shall think fit;
(13) it may from time to time as it thinks fit establish committees and branches and may revoke the establishment of any such committee and branch;
(14) it may from time to time in its absolute discretion delegate any of its powers, authorities and discretions to any, any committee, the Chief Executive Officer, or Officer of the Association on such conditions and for such period it may think fit and it may at any time revoke such delegation;
(15) it may appoint committees from its own members or from them and other persons including persons who are not members of the Association with such powers as it may prescribe provided such powers be not in excess of its own;
(16) notwithstanding sub-clause 67(9) hereof, it may from time to time in its absolute discretion make a payment to the employer of a member who is or has been the President as an amount appropriate to compensate the employer for the loss of the services of the President or incidental expenses related thereto in connection with the period of office of the President. A member who is or has been President and who is a partner or a principal of a business shall be deemed to be an employee of the business;
(17) notwithstanding sub-clauses 53(16) and 67(9) hereof, it may from time to time in its absolute discretion make a payment to the employer of a member who is or has been a Director as an amount appropriate to compensate the employer for the loss of the services of the Director or incidental expenses related thereto in connection with the period of office of the Director. A member who is a partner or a principal of a business shall be deemed to be an employee of the business;
(18) it may exercise all such powers, privileges and discretions as are not by the Law or this Constitution expressly and exclusively required to be exercised by the members in General Meeting.
FORMATION OF BOARD OF DIRECTORS
Entitlement to vote
54) The Board of Directors shall consist of not less than three and no more than five members, each of whom shall be a Member and shall be elected by the members provided that the Board of Directors may from time to time determine within those limits the maximum number of members to comprise the Board of Directors.
55) For the purpose of clauses 54 and 62, a Member may include a natural person nominated by a Member who is a body corporate on the condition that such a person be associated with the body corporate and otherwise complies with this Constitution, By-Laws and Regulations of the Association.
Election of Directors
56) Subject to Clause 59, prior to the last day of the third month following the end of the relevant financial year, the members shall elect a Director or Directors as the case may be. All such elections shall be conducted in such manner as may be prescribed by the By-laws.
57) On the expiration of their terms of office the retiring Directors shall be eligible for re-election.
Term of Directorship
58) A “term” for a directorship is defined, subject to clauses 59, 60 and 67 as being two years from the first day of the fourth month following the end of the financial year subsequent to their election.
Term of Directors – Transitional Arrangements
59) One half of the number of Directors elected to the Board of Directors by the first day of October 2010, shall hold office for a term of two years, with the remaining directors to hold office for a term of one year.
60) For the purpose of clause 59, the Board of Directors shall amongst themselves determine the term of office of the Directors at the first Board of Directors meeting held following the first day of October 2010.
Casual Vacancy
61) Any casual vacancy occurring on the Board of Directors may be filled by an appointment of the Board of Directors. Such a director shall retain office for the remainder of the vacating Director term if no vacancy had occurred.
Alternate Directors
62) A Director may appoint, with approval from the Board of Directors, another Member as an Alternate Director to exercise all or such delegated powers for a specified period or meeting.
63) If the appointing Director so requests, the Association must give the Alternate Director notice of Directors’ meetings.
64) Where an Alternate Director exercises validly the Director’s powers, the exercise of the power is just as effective as if the powers were exercised by the Director.
65) The appointment of the Alternate Director may be revoked at any time by the appointing Director or shall lapse when the specified time has lapsed.
66) An appointment of an Alternate Director or its termination must be in writing. A copy of such must be provided to the Association.
Directors vacating their directorship
67) The office of a Director shall ipso facto be vacated if:
(1) the Director ceases to be a Member of the Association or deemed a member of the Association for the purpose of clause 54;
(2) the Director resigns from the Board of Directors
(3) the Director is absent from three consecutive meetings of the Board of Directors without the consent of the Board;
(4) the Director becomes an insolvent under administration;
(5) the Director becomes prohibited from being a Director by reason of any Order made under the Law;
(6) the Director attains the age of 72 years;
(7) the Director 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;
(8) the subscription and other fees payable to the Association by the Director (who is a member) are overdue for three months;
(9) the Director is appointed to any salaried office of the Association or any office of the Association for which a fee is paid by the Association or receives any remuneration from the Association PROVIDED THAT nothing in this Clause shall prevent the payment of interest at the lowest rate paid by the Association’s banker in respect of term deposits for the time being on money borrowed from the Director or reasonable and proper rent for premises let by the Director to the Association or the payment by the Association of reasonable and proper travel allowance or repayment of out-of-pocket expenses incurred by the Director in carrying out the duties of a Director and PROVIDED FURTHER THAT nothing in this sub-Clause shall affect the exercise of the power vested in the Board of Directors by sub-clauses 53 (16) and 53 (17) in relation to the President or a Director who at the time of the exercise of such power is a Director. For the purposes of this sub-Clause, the expression ‘out-of-pocket expenses’ shall be taken to include all expenditure and outgoings incurred by such Director in carrying out the directions of the Board of Directors other than the payment by the Association of a travel allowance to a Director, and the Board of Directors shall prior to the Director undertaking the tasks in relation to which the Director will claim such out-of-pocket expenses, nominate the proportion of the Director’s own out-goings and business expenditure which the Director may claim, and thereafter from time to time until such tasks are completed, or until the Director ceases to be a Director; or
(10) the Director’s office is declared vacant by a resolution of a General Meeting of the Association.
(11) The Director appointed by resolution of the Board of Directors, ceases to have the confidence of a majority of not less than two-thirds of the Directors present and voting.
Quorum for meetings of the Board of Directors
68) Three members of the Board of Directors present at any meeting duly convened shall constitute a quorum with power to act.
69) The continuing Directors may act notwithstanding any vacancy in their number provided that not less than three Directors elected by the members continue in office.
Conflict of Interest
70) (1) If a Director is directly or indirectly interested in any contract or proposed contract with the Association; and
(2) the interest could conflict with the proper performance of the Director’s duties in relation to the contract or proposed contract –
(a) the Director, as soon as practicable after becoming aware of the relevant facts, must declare the nature of the interest to the Association; and
(b) the Director will be disqualified from office in respect of the contract or proposed contract only. The disqualified Director will be unable to exercise any of the rights and benefits conferred to that position by the Association in relation to the contract or proposed contract.
(3) (2)(b) of this Clause will not apply if the interest of the Director:
(a) may be properly regarded as not being material, and
(b) does not exceed 5% of the issued shares (if a company) or 5% of the capital of the business proposing to enter into a contractual arrangement with the Association, and
(4) any such contract, once entered into, shall be disclosed both as to the parties and as to the nature of the contract in the Annual Report covering the period when such contract is entered into, and in each subsequent Annual Report during the currency of such contract.
71) (1) A director must exercise their powers and discharge their duties:
(a) in good faith and for the best interest of the Association; and
(b) for a proper purpose.
(2) A director must not improperly use their position to:
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the Association.
(3) A director must not improperly use information obtained or received as a director to:
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the Association.
72) The Board of Directors by special resolution, may remove a Director found to have breached clauses 70 and/or 71 from the Board of Directors and bar such person from being a Director of the Association for a minimum of three years.
PROCEEDINGS OF BOARD OF DIRECTORS MEETINGS
Regulating meetings
73) The Board of Directors may meet, adjourn and otherwise regulate their respective meetings as they shall think fit PROVIDED THAT the Board of Directors shall meet at least once every year.
Quorum for a meeting
74) A meeting of the Board of Directors for the time being at which a quorum is present shall be competent to exercise all or any of the authorities, powers and discretions vested in it by any means whatsoever.
Convening a meeting
75) A meeting of the Board of Directors shall be convened at any time upon the request of the President or all the other directors.
Voting on questions
76) Questions at any meeting of the Board of Directors shall be decided in the first instance by a show of hands and in the event of an equality of votes the Chairman shall have a casting vote (other than in respect of an election which shall in all cases be determined pursuant to the Constitution).
Rotary Resolutions
77) A resolution in writing, a copy of which has been forwarded to every member of the Board of Directors and signed by at least two-thirds thereof to signify approval and which has been returned to the Association within fourteen days from the date of dispatch from the Association’s office, shall be as valid and effectual as if it had been passed at a meeting of the Board of Directors duly called and constituted.
Office Bearers
78) On or before the last day of the fourth month following the end of the financial year in each year and prior to the Annual General Meeting for that year, the Board of Directors shall elect from its members a President, a Vice President and a Treasurer. Each person so elected shall hold office from the close of the following Annual General Meeting. For the election of the first office bearers of the Association, they shall hold office from the time of their election as an Office Bearer. All such elections shall be conducted in such manner as may be prescribed by the By-laws.
79) The Office Bearers shall each respectively hold office for a term of two years until a successor is appointed. Any vacancy occurring before such successor is appointed may be filled at a meeting of the Board of Directors to be held as soon as practicable after the occurrence of the vacancy of which business notice shall be given to all Directors. On the expiration of their terms as Office Bearers, the retiring Office Bearers shall be eligible for re-election. An Office Bearer must not exceed two successive terms in the one position.
Presiding over meetings
80) At all meetings of the Board of Directors the President shall be the Chairman or, in the President’s absence, the Vice President or, in the Vice President’s absence, the Treasurer or, in the absence of all the above office bearers, a Chairman shall be elected from amongst the Directors.
Minutes of meetings
81) The Board of Directors shall cause to be regularly entered, minutes of the proceedings of their respective meetings, of General Meetings of the Association and any other meeting of the Association and of the names of those present at such meetings. The minutes of any meeting signed by the Chairman of the succeeding meeting shall be conclusive evidence of the transactions recorded in such minutes.
Validation of decisions
82) All acts done at any meeting of the Board of Directors or of a Committee appointed by the Board of Directors or by any person acting as a Director or Committee member shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of or that they or any of them were disqualified, be as valid as if such the Board of Directors, Committee or person had been duly appointed and was qualified to act.
MISCELLANEOUS
Committees
83) The meetings and proceedings of every such Committee shall be governed by such regulations as may from time to time be made by the Board of Directors.
84) No report or resolution of any Committee shall bind the Association until adopted or confirmed by the Board of Directors unless at the time of the appointment of such Committee power to do so was expressly given to such Committee.
CHAPTER 6: REGISTER OF MEMBERS
Register of Members
85) A Register of members is to be kept in accordance with the Law.
86) The Register shall set out the status of each member and shall contain such further particulars as may from time to time be prescribed by the Board of Directors.
87) Every member shall from time to time furnish the Association with all required information to enable it to compile a record of member qualifications and experience in accordance with this Constitution.
88) The name of any person who ceases to be a member, shall be removed from the Register.
89) Every member so changing their principal place of residence or principal place of business shall within one calendar month thereafter notify the Association of the fact of such change.
CHAPTER 7: INVESTIGATION AND DISCIPLINARY PROCEDURES
Misconduct and Penalties
90) (1) If any member has been found by the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) to be convicted by a court of law of an offence which in the opinion of the Board of Directors or a Disciplinary Tribunal is inconsistent with being a member of the Association, the Board of Directors or the Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) shall impose one or more of the penalties and costs listed at (3) below.
(2) If any member:
(a) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to be guilty of any breach of the Constitution, By-laws or Regulations of the Association; or
(b) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to have failed to observe a proper standard of professional care, skill or competence; or
(c) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to have obtained admission by improper means; or
(d) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to cease to hold the necessary qualifications for membership; or
(e) has been found by the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) to have become an insolvent under administration; or
(f) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to have undertaken conduct which is not in the best interests of the Association; or
(g) has been found by the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) to cease to have capacity at Law; or
(h) has in the opinion of the Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) been found to have failed to comply with any reasonable request made pursuant to a matter under this Chapter of the Constitution by the Board of Directors, a Disciplinary Tribunal or an Officer of the Association.
The Board of Directors or a Disciplinary Tribunal (whichever is hearing the alleged breach or breaches) shall impose on that member any one or more of the penalties listed at (3) below.
(3) Penalties
(a) forfeiture of membership;
(b) suspension from membership for any period that the Board of Directors or a Disciplinary Tribunal (whichever is hearing the matter) shall prescribe and on such terms and conditions as to resumption of membership as the Board of Directors or a Disciplinary Tribunal may prescribe, and not limiting the generality of the foregoing may require the member to pass prescribed examinations or successfully complete a course of study;
(c) a fine not exceeding $10,000 and in default of payment within the period of 30 days or such other period as the Board of Directors or a Disciplinary Tribunal may from time to time determine, forfeiture of membership;
(d) censure;
(e) admonishment;
(f) any other penalty deemed appropriate;
(g) payment of all or any of the costs and expenses reasonably incurred by the Association in the investigation and determination of any matter arising under this Chapter and in default of payment of such costs and expenses, forfeiture of membership within a period of time to be determined by the Board of Directors or a Disciplinary Tribunal.
Suspension
91) If any member has been charged with an offence, which in the opinion of the Board of Directors warrants suspension, the Board of Directors shall suspend the members until such time as the Board of Directors considers reasonable.
92) During any period of suspension a member shall continue to pay all fees and subscriptions and shall be subject to this Constitution, By-laws and Regulations relating to the conduct of members but apart from Clause 107 shall cease to enjoy any of the rights or benefits conferred on members by this Constitution or by the By-laws or Regulations and shall deliver to the Association their membership Certificate.
Forfeiture
93) A person whose membership has been forfeited shall cease to be a member. The member’s name shall be removed from the Register and the member shall return the Certificate or Certificates of Membership of the Association forthwith.
94) A member who has been suspended may be declared to have forfeited membership if the member fails to deliver up on demand the Certificate or Certificates of Membership of the Association to the Association.
Appointment of Investigator, Investigations Review Officer and Disciplinary Tribunals
95) (1) The Board of Directors may appoint a person or persons to the position of “Investigator” in order to undertake investigations on behalf of the Association in relation to alleged breach or breaches of this Constitution, By-laws or Regulations of the Association. The Investigator shall be responsible to the “Investigations Review Officer”.
(2) The Board of Directors shall appoint an “Investigations Review Officer” who shall review the work of the Investigator in relation to an investigation as prescribed in the By-laws.
(3) The ‘Investigator” or ‘Investigations Review Officer” shall exclude themselves from any investigation that they may have a conflict of interest in. In such situations, the Board shall appoint a new “Investigator” and/or “Investigations Review Officer” for such an investigation
(4) The procedures that an Investigator and an Investigation Review Officer shall conduct their investigation shall be in accordance with this Constitution and By-Laws.
96) (1) The Board of Directors shall appoint, as required a Disciplinary Tribunal of at least two persons, to hear an allegation or allegations of a breach or breaches of this Constitution, By-laws or Regulations of the Association by a member and make findings on whether on the balance of probabilities; a member has breached this Constitution, By-laws or Regulations of the Association and if so, impose penalties. The Board of Directors shall also appoint the Chairman of the Disciplinary Tribunal.
(2) The Board of Directors may itself hear an allegation or allegations of a breach or breaches of this Constitution, By-laws or Regulations of the Association by a member and make findings on whether on the balance of probabilities; a member has breached this Constitution, By-laws or Regulations of the Association by members and if so, impose penalties
(3) The procedures at every such hearing shall be conducted in such manner as the Board of Directors may from time to time prescribe.
Proceedings of Investigator and the Disciplinary Tribunals
97 (1) (a) The powers conferred on the Board of Directors or Disciplinary Tribunal by Clause 90 shall not be exercised until:
i. the Association becomes aware of an alleged breach or breaches through an allegation in writing or upon receipt of suitable evidence of a breach
ii. an Investigator gives the member a reasonable opportunity to respond to the alleged breach or breaches
iii. a report on the alleged breach or breaches of this Constitution, By-laws or Regulations of the Association has been made to the Board of Directors or the Disciplinary Tribunal by an Investigator, and the report has the approval of the Investigations Review Officer; and
iv. until a hearing of the Board of Directors or the Disciplinary Tribunal has considered such alleged breach or breaches of this Constitution, By-laws or Regulations of the Association of which meeting the member the subject of such alleged breach or breaches has been given at least fourteen days notice in writing specifying the alleged breach or breaches to be considered at the meeting; and
v. at which hearing, such member has been given the opportunity of:
1. being heard on the alleged breach or breaches, with or without the member’s solicitor or counsel or some other member; and
2. of presenting such evidence as the member may desire.
(b) The said notice shall be served personally or be sent by certified mail. A member shall be deemed to have received the said notice upon delivery, or, if posted, three days after the day of posting in an envelope addressed to the address of the member in the Register.
(c) Notwithstanding paragraph (a) of this sub-clause, the Investigator may make a decision, with the approval of the Investigations Review Officer, as to an alleged breach or breaches and give the member concerned by notice in writing of the decision, however where such a decisions involves a penalty, the Investigator can not apply the penalties listed in paragraphs 90(3)(a), (b), (c), (d) and (g). The Board of Directors may further specify in the By-Laws within what specific areas and how such a decision can be made.
(2) The Board of Directors or a Disciplinary Tribunal may engage a solicitor with or without counsel to assist it at such meeting.
(3) Neither the Board of Directors, any Disciplinary Tribunal nor the Investigator shall be under any obligation to disclose to the member concerned or any other member the source of any information giving rise to such proceedings.
Notice of findings
98) Any member against whom any finding has been made or upon whom any penalty has been imposed in accordance with sub-clause 90(3), shall be given notice in writing of the finding or sanction by the Association by personal service or by certified mail. A member shall be deemed to have received the said notice upon delivery, or, if posted, three days after the day of posting in an envelope addressed to the address of the member in the Register. The Association may inform other persons of the result of any Investigations undertaken by the Association.
Appeals
99) (1) Any member against whom any finding that they have breached this Constitution, By-Laws and Regulations has been made, may within thirty days after notice of such finding is deemed to have been received, give notice of appeal in writing against the finding or findings and/or penalty or penalties stating the grounds of appeal to the Association.
(2) The Association may within thirty days of a penalty being imposed against a member for a breach or breaches of this Constitution, By-Laws or Regulations of the Association, give notice of an appeal in writing against the penalty or penalties stating the grounds for the appeal to the member and the President.
(3) Such notice of appeal shall operate as a stay of implementation of any decision of the Board of Directors or Disciplinary Tribunal (whichever made the finding).
100) (1) Every appeal shall be heard by an Appeals Tribunal appointed by the Board of Directors. The Appeals Tribunal shall consist of at least three people. The Board of Directors shall also appoint the Chairman of the Appeals Tribunal.
(2) Persons who heard the original hearing shall be excluded from being appointed to the Appeals Tribunal.
(3) A member whose appeal is unsuccessful shall pay to the Association all or any costs or expenses reasonably incurred by the Association in connection with the hearing of the appeal as the Appeals Tribunal may determine.
(4) If the Association has given notice of an appeal, and the appeal is unsuccessful, the Association shall pay to the member concerned all or any costs or expenses reasonably incurred by the member in connection with the hearing of the appeal as the Appeals Tribunal may determine.
101) (1) At a meeting of an Appeals Tribunal, the breach or breaches of this Constitution, By-Laws or Regulations of the Association that the member has been found to have breached by the Board of Directors or the Disciplinary Tribunal in the first instance and is appealing, shall be re-heard. The Appeals Tribunal shall act as if it is the Disciplinary Tribunal and follow the same processes and procedures a Disciplinary Tribunal must follow as set out in this Constitution and the By-Laws of the Association
(2) The Board of Directors may impose additional procedures on an Appeals Tribunal.
(3) The finding or findings and if applicable the penalty or penalties decided by an Appeals Tribunal are final.
Public Notice of Findings
102) Public notice of any penalty against a member or any fine imposed upon or costs awarded against a member may be published in such manner as the Board of Directors shall deem fit and the Certificate or Certificates of Membership of the Association of the member so suspended or whose membership has been forfeited shall in either case be delivered to the Association to be retained during the member’s suspension or to be cancelled.
CHAPTER 8: ANCILLIARY CLAUSES
Annual Subscriptions
103) The Board of Directors shall prescribe the annual subscription (if any) payable and when due by members of the Association and the method of payment and may in special circumstances waive the subscription or prescribe a different rate of subscription or a different method of payment.
Late Payment of Annual Subscription
104) If any member’s subscription is overdue for three months a late fee may apply in addition to the annual subscription.
Removal of member for non-payment of monies owing to the Association
105) Any member that has not paid the annual subscription and late payment (if applicable) or any other monies owning to the Association in full within a period of five months (or a shorter time that this Constitution may prescribe) of the Annual Subscription or the monies owing becoming payable, the member’s name may with the authority of the Board of Directors be removed from the Register and from the date of such removal the member shall forfeit their membership but without prejudice to the right of the Board of Directors to recover all arrears including the subscription for the year then current and the Certificate or Certificates of Membership of the Association.
Fee on Admission or Advancement
106) The Board of Directors shall prescribe the fees (if any) payable by applicants for membership and the method of payment for admission to membership or advancement in status.
Certificates of membership
107) (1) On admission to membership or on a change in status, and on payment of the prescribed fee (if any) a Certificate of Membership certifying the member’s status in the form prescribed by the Board of Directors from time to time shall be issued to such member.
(2) The Certificate of Membership shall be under the Seal of the Association and shall bear the signatures or facsimile signatures of any two Directors of the Association.
(3) Every such Certificate shall remain the property of the Association and the Board of Directors shall be at liberty at any time to call for and compel its production and delivery and may alter amend cancel or destroy any such Certificate or issue a new Certificate in lieu thereof.
(4) Any person ceasing to be a member of the Association shall return the Certificate of Membership for cancellation.
(5) If any person neglects or refuses to return the Certificate the Association may institute legal or other proceedings for its recovery.
(6) If a Certificate is defaced lost or destroyed it may be replaced on payment of such fee (if any) and on such terms as the Board of Directors thinks fit.
Chief Executive Officer
108) The Chief Executive Officer shall be appointed by the Board of Directors for such term and upon such conditions as the Board of Directors thinks fit, and any Chief Executive Officer so appointed may be removed by the Board of Directors. The Chief Executive Officer, if appointed shall fill the position of company secretary.
Secretary
109) In the absence of a Chief Executive Officer, the Board of Directors shall appoint a company secretary. The company secretary shall be considered an Officer of the Association.
Common Seal of the Association
110) The Common Seal of the Association shall be in the custody of the President or the President’s nominee. The Board of Directors may prescribe the manner by which such seal is to be affixed and attested and except as provided in sub-clause 107(2) it shall not be affixed to any document except by order of the Board of Directors and in the presence of two members of the Board of Directors who shall attest the affixing of the seal.
Audit of Accounts
111) The accounts shall be audited by a registered company auditor if the Law requires it.
Indemnity for Liability (Other than for Legal Costs)
112) To the extent permitted by the Law, the Association indemnifies every person who is or has been a Director, Chief Executive Officer, Committee member and any other Officer of the Association or of a wholly-owned subsidiary of the Association against any liability incurred by the person as a Director, Chief Executive Officer, Committee member and any other Officer of the Association or of a wholly-owned subsidiary of the Association, to another person except in circumstances where:
(1) the liability is owed to the Association or a wholly-owned subsidiary of the Association; or
(2) the liability is owed to a person other than the Association or a wholly owned subsidiary of the Association and the liability arises out of conduct involving a lack of good faith; or
(3) the liability arises from a pecuniary penalty order under section 1371G or a compensation order under section 1371H of the Law.
Indemnity for Legal Costs
113) To the extent permitted by the Law, the Association indemnifies every person who is or has been a Director, Chief Executive Officer, Committee member and any other Officer of the Association or of a wholly-owned subsidiary of the Association against any liability for costs and expenses incurred by that person in defending any proceedings unless the costs and expenses are incurred:
(1) in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under Clause 112; or
(2) in defending or resisting criminal proceedings in which the person is found to be guilty; or
(3) in defending or resisting proceedings brought by the Australian Securities and Investment Commission (“ASIC”) or a liquidator for a Court order if the grounds for making the order are found by the Court to have been established; or
(4) in connection with proceedings for relief to the person under the Law and the Court denies the relief, save that sub-clause (c) shall not be construed as excluding any indemnity being provided to a person for costs and expenses incurred in responding to actions by ASIC or a liquidator as part of an investigation before commencing proceedings for the Court order.
Insurance Premiums for Certain Liabilities
114) The Association may pay, or agree to pay, a premium in respect of a contract insuring a person who is or has been a Director, Chief Executive Officer, Committee member and any other Officer of the Association or of a subsidiary of the Association against a liability:
(1) incurred by the person in their capacity as a Director, Chief Executive Officer, Committee member and any other Officer of the Association or a subsidiary of the Association or in the course of acting in connection with the affairs of the Association or a subsidiary of the Association or otherwise arising out of the Officer’s holding such office PROVIDED THAT the liability does not arise out of conduct involving a wilful breach of duty in relation to the Association or a subsidiary of the Association or a contravention of Sections 182 or 183 of the Law; or
(2) for costs and expenses incurred by that person in defending proceedings, whatever their outcome.
Payment of Legal Costs
115) To the extent permitted by the Law and notwithstanding sub-clauses 67(9), the Association may make (or agree to make) payment, whether by way of advance, loan or otherwise, to a Director, Chief Executive Officer, Committee member and any other Officer of the Association or a wholly-owned subsidiary of the Association in respect of costs and expenses incurred by that person in defending any proceedings provided that:
(1) the person is or may be entitled to be indemnified by the Association against liability for the cost and expenses pursuant to Clause 113; and
(2) it would be reasonable in the circumstances of the Association, disregarding any other financial benefit given or payable to the person by the Association, to:
(i) make the payment at the time the payment was or is given; or
(ii) agree to make the payment at the time when the agreement is or was made; and
(3) the person must repay the amount paid if the costs and expenses become costs and expenses for which the person is not entitled to be indemnified by the Association pursuant to Clause 113.
Exemptions
116) Nothing in Clauses 112 or 113 shall be construed as providing an exemption to a person from a liability to the Association as a Director, Chief Executive Officer, Committee member and any other Officer of the Association.
Definition of “Proceedings”
117) For Clauses 113 to 115 the term “proceedings” means any proceedings, whether civil or criminal, being proceedings in which it is alleged that the person has done or omitted to do some act, matter or thing in that person’s capacity as an Officer or in the course of acting in connection with the affairs of the Association or a wholly-owned subsidiary of the Association (for the purposes of Clauses 112 and 114 or a subsidiary (for the purposes of Clause 113) or otherwise arising out of the Officer’s holding such office (including proceedings alleging that the person was guilty of negligence, default, breach of trust or breach of duty in relation to the Association or a wholly-owned subsidiary of the Association (for the purposes of Clauses 112 and 114 or a subsidiary (for the purposes of Clause 113).”
Interpretation of this Constitution
118) Subject to the overriding powers of members in General Meeting, and to the jurisdiction of the Courts, if any doubt shall arise as to the proper construction or meaning of any of this Constitution or of any By-laws or Regulations made hereunder or any of them or of any expression therein the decision of the Board of Directors thereon shall be final and conclusive provided such decision be reduced to writing and recorded in the Minute Book of the proceedings of the Board of Directors.
119) This Constitution may be amended, repealed, rescinded and replaced in accordance with the Law. Nothing whether contained in this Constitution for the time being in force or otherwise howsoever shall be construed as implying or creating any privilege, priority or right in favour of any member so as to limit the power of the Association at any time to alter, rescind or repeal the same and adopt a new Constitution in its place.
120) If a Clause or part thereof is, or may become, unenforceable at law for any reason whatsoever, this Constitution is severable in respect of such Clause or part thereof and the remainder of this Constitution is to be read and construed for all intents and purposes as if the same did not form part of this Constitution.