Hong Kong Australia Business Association Limited
ACN 108 496 313 Constitution
HKABA Constitution 01 October 2015 Page i
Table of Contents Page
1 Definitions and Interpretation 1
2 Objects of Company 3
3 Membership 4
4 Cessation of Membership 7
5 Expulsion of Members 7
6 Chapters 8
7 National General Meetings 9
8 Notice of National General Meetings 10
9 National Annual General Meetings 10
10 Postponement or Cancellation of National General Meetings 11
11 Proceedings at National General Meetings 12
12 Votes of Members 15
13 Votes by Proxy 16
14 Representatives of corporations 19
15 Board of Directors 19
16 Powers and Duties of Directors 20
17 Proceedings of Directors 21
18 Treasurer 25
19 Seal 25
20 Inspection of Records 26
21 Notices 26
22 Audit and Financial Records 27
23 Winding up 27
24 Indemnity 28
25 Amendment or Alteration of Constitution 28
26 By-laws 28 Constitution
Constitution of the Hong Kong Australia Business Association Limited
(ACN 108 496 313)
1 Definitions and Interpretation
In this Constitution:
‘Auditor’ means the external auditor or auditors of the Company for the time being;
‘Board’ means the board of Directors of the Company;
‘By-Law’ means each by-law made pursuant to clause 26;
‘Chapter’ means a sub-class of Ordinary Members listed in clause 3.2, each having the name appearing in brackets in that list, and unless otherwise stated, includes both Incorporated Chapters and Unincorporated Chapters;
‘Chapter President’ means the president of a Chapter, who is elected or appointed in accordance with clauses 6.4(a) or 15.4(c);
‘Chapter Vice President’ means the vice president of a Chapter, who is elected or appointed in accordance with clauses 6.4(a) or 15.4(c);
‘Company’ means Hong Kong Australia Business Association Limited ACN 108 496 313;
‘Constitution’ means the constitution of the Company as amended from time to time;
‘Director’ means a person holding office as a director of the Company;
‘Incorporated Chapter’ means a Chapter referred to in clause 3.2 where:
(a) the Ordinary Members of that Chapter have incorporated as an association or other body corporate under any State or Commonwealth law; and
(b) that association or other body corporate is recognised by the Board pursuant to clause 6.2;
‘Invitational Honorary Member’ means a person referred to in clause 3.6 who is entered in the Register for the time being as a Member in the Invitational Honorary Class of membership;
‘Financial Member’ means a Member of the Company who has paid all fees that are due and payable to the Company, and otherwise who has no outstanding debts to the Company or the Chapters;
‘Law’ means the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) as amended or replaced and for the time being in force;
‘Member’ means a person entered for the time being in the Register as a member, and unless otherwise stated, includes all classes and Chapters of members;
‘National Member’ means a person entered in the Register for the time being as a Member in the National Class of membership as described in clause 3.4;
‘National President’ means the person elected by the Board of the Company as provided for in clause 9.4 whose powers shall include the right to chair:
(a) Board meetings pursuant to clause 17.8;
(b) general meetings pursuant to clause 11.4,
as the case may be;
‘National Vice President’ means the person elected by the Board of the Company as provided for in clause 9.4 who shall in the absence of the President exercise the powers of the President;
‘Office’ means the Company’s registered office;
‘Ordinary Member’ means a person entered in the Register for the time being as a Member in the Ordinary Member Class of membership, being a Member that has the rights referred to in clause 3.3, and unless otherwise stated includes Ordinary Members who are members of any of the Chapters referred to in clause 3.2;
‘Register’ means the register of Members of the Company;
‘Registered Address’ means the last known address of a Member as noted in the Register;
‘Representative’ means a natural person who is authorised by a Financial Member which is a body corporate to act as the representative of that Member pursuant to this Constitution and appointed pursuant to section 250D of the Law;
‘Seal’ means the Company’s common seal (if any);
‘Secretary’ means the Treasurer or such other person as appointed by the Board to perform any of the duties of a secretary of the Company;
‘Treasurer’ means the person referred to in clause 18(a);
‘Term’ means, in relation to a Director, the period commencing the date of that Director’s appointment and ending at the conclusion of the next Annual General Meeting;
‘Unincorporated Chapter’ means a Chapter that:
(a) has five (5) or more Ordinary Members;
(b) is not an Incorporated Chapter; and
(c) is recognised as an Unincorporated Chapter pursuant to clause 6.3.
In this Constitution, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) words importing a gender include each other gender;
(c) words importing natural persons include corporations;
(d) words and expressions defined in the Law have the same meaning in this Constitution; and
(e) headings are for convenience only and do not affect the interpretation of this Constitution.
(f) other than in the name “Hong Kong Australia Business Association Ltd” the term “Hong Kong” shall mean “Hong Kong Special Administrative Region”.
1.3 Corporations Act
(a) Unless the contrary intention appears in this Constitution, an expression in a clause in this Constitution has the same meaning as in a provision of the Law which deals with the same matter as the clause.
(b) The provisions of the Law which apply replaceable rules are displaced by this Constitution, and accordingly do not apply to the Company.
2 Objects of Company
The objects of the Company are:
(a) to promote contact and communications between business people of Australia and Hong Kong;
(b) to provide a forum for increasing knowledge and understanding of Australia and Hong Kong through speaker programs, trade mission and other events;
(c) to assist in the development and promotion of business and investment between Australia and Hong Kong;
(d) to disseminate information on trade and investment opportunities between Australia and Hong Kong;
(e) to provide a forum for the provision of recognition and incentive to Members who strive for excellence in all aspects of international trade between Australia and Hong Kong;
(f) to provide support to the Federation of Hong Kong Business Associations Worldwide and other organisations in matters deemed likely to benefit members of both organisations, HKABA Constitution 01 October 2015 Page 4
and to do all things reasonably necessary to achieve these objects.
The assets and income of the Company shall be applied solely to further its objects and no portion shall be distributed directly or indirectly to the Members of the Company except as genuine compensation for services rendered or expenses incurred on behalf of the Company.
3.1 Classes of Membership
(a) Membership of the Company shall be divided into the following classes:
(i) Invitational Honorary Class,
(ii) National Class;
(iii) Ordinary Class,
and any other classes as the Board may determine from time to time.
(b) A Member may only be a Member of one class at a time. If a Member satisfies the requirements of more than one class of membership referred to in clause 3.1(a) at any one time, then Member will be deemed to be a Member only of the first class of membership listed or referred to in clause 3.1(a) for which the Member satisfies the membership requirements.
3.2 Sub-Classes of Ordinary Members
(a) The Ordinary Members shall be further divided into sub-classes of membership:
(i) Ordinary (NSW) Class, which is comprised of Ordinary Members whose address in the Register is in New South Wales or who are otherwise classified by the Board as being in this class (NSW Chapter);
(ii) Ordinary (VIC) Class, which is comprised of Ordinary Members whose address in the Register is in Victoria or who are otherwise classified by the Board as being in this class (Victorian Chapter);
(iii) Ordinary (SA) Class, which is comprised of Ordinary Members whose address in the Register is in South Australia or who are otherwise classified by the Board as being in this class (SA Chapter);
(iv) Ordinary (QLD) Class, which is comprised of Ordinary Members whose address in the Register is in Queensland or who are otherwise classified by the Board as being in this class (Queensland Chapter);
(v) Ordinary (WA) Class, which is comprised of Ordinary Members whose address in the Register is in Western Australia or who are otherwise classified by the Board as being in this class (WA Chapter);
(vi) Ordinary (NT) Class, which is comprised of Ordinary Members whose address in the Register is in Northern Territory or who are otherwise classified by the Board as being in this class (NT Chapter);
(vii) Ordinary (ACT) Class, which is comprised of Ordinary Members whose address in the Register is in Australian Capital Territory or who are otherwise classified by the Board as being in this class (ACT Chapter);
(viii) Ordinary (TAS) Class, which is comprised of Ordinary Members whose address in the Register is in Tasmania or who are otherwise classified by the Board as being in this class (Tasmanian Chapter).
(b) References made to the Ordinary Members shall include, unless otherwise specifically stated, Ordinary Members in any of the Chapters existing at any particular time.
3.3 Rights of Ordinary Members
Each Ordinary Member shall have the following rights:
(a) the right to attend, but not to vote, at all general meeting of Members;
(b) to the extent and as directed by the Chairman, the right to speak and be heard at all general meetings of Members of the Company; and
(c) to the extent that the person is an Ordinary Member of an Unincorporated Chapter, the right to attend and vote at meetings of the Ordinary Members of that Unincorporated Chapter, with such meetings being meetings of a class of Ordinary Members.
3.4 National Members
Membership of the National Class is comprised of:
(a) the current Chapter President of each Incorporated Chapter and Unincorporated Chapter;
(b) the person currently nominated by the Hong Kong Trade Development Council as its representative;
(c) the current National President and National Vice President; and
(d) the person who was the National President immediately before the current National President.
3.5 Rights of the National Member
The National Members shall have the following rights:
(a) the rights and powers attaching to the Ordinary Class; and
(b) the right to vote at general meetings of Members. HKABA Constitution 01 October 2015 Page 6
3.6 Invitational Honorary Members
Membership of the Invitational Honorary Class shall be made up of such high profile and influential people as the Board may approve from time to time.
3.7 Rights of Invitational Honorary Members
Each Invitational Honorary Member shall have the following rights:
(a) to be invited attend all functions and events at Member’s rates;
(b) to be invited attend (but not to vote at) all Company and Chapter Meetings as guests; and
(c) such other rights and privileges as the Board may decide from time to time.
3.8 Applications for Ordinary Membership
(a) Ordinary Members may be admitted to the Company as follows:
(i) the prospective applicant (Applicant) submitting the application to the Board in such form and manner as prescribed by the Board and accompanied by the relevant membership fee; and
(ii) the Board shall consider the membership application and if thought fit, shall enter the Applicant’s name into the Company Register as an Ordinary Member in the Chapter determined to be appropriate by the Board, in its discretion.
(b) The Board may accept or reject any application for membership, or require the Applicant to provide further information before making its decision, and at its discretion, may accept an application even if it does not meet the requirements set out in this Constitution.
(c) If the Board rejects an application for membership, it must refund any membership fee accompanying the application to the Applicant.
(d) The Board may delegate its powers under this clause 3.8 to the executive officer of the Company from time to time.
3.9 Membership Fees
The Board may determine the amount and time for payment of the membership fee, levies and contributions payable by Members from time to time, and if there is more than one class of membership, may determine differential membership fees, levies and contributions amongst the different classes of Members.
3.10 Admission to the Invitational Honorary Class
(a) Invitational Honorary Members may be invited by the Board to apply for membership as an Invitational Honorary Member as follows:
(i) the prospective applicant (Applicant) submitting the application in such form and manner as prescribed by the Board to the Board;
(ii) the Board shall consider the honorary membership application and, if thought fit, shall enter the Applicant’s name into the Company Register as an Invitational Honorary Member.
(b) The Board may accept or reject any application for membership, or require the Applicant to provide further information before making its decision, and at its discretion, may accept an application even if it does not meet the requirements set out in this Constitution.
3.11 Membership rights
The rights and privileges of each member are personal to each Member and are not transferable by the Member’s own act or by operation of law, and if applicable, are subject to any restriction or additional rights or privileges applicable to the class or Chapter of membership.
4 Cessation of Membership
A Member may at any time by giving notice in writing to the Secretary resign his membership of the Company but shall continue liable for any subscriptions or fees due and unpaid at the date of his resignation and for all other moneys due by the Member to the Company and in addition such amount as the Member is liable as a member of the Company under clause 23(a).
4.2 Automatic Cessation of Membership
In addition to clause 4.1, a Member’s membership of the Company will cease without the right to receive a refund of any membership fee, levy or contribution if:
(a) the Member dies, or being a company or incorporated association, is wound up or deregistered; or
(b) is expelled pursuant to clause 5.
5 Expulsion of Members
5.1 If the subscription of a Member shall remain unpaid for a period of two calendar months after it becomes due then the Member shall lose all rights as a Member of the Company provided that the Board may at its discretion reinstate the Member and their rights upon payment of all arrears.
5.2 Where the Board is of the opinion that a Member of the Company:
(a) has persistently refused or neglected to comply with a provision or provisions of this Constitution; or
(b) has persistently and wilfully acted in a manner prejudicial to the interests of the Company,
the Board may by resolution:
(c) expel the Member from the Company;
(d) suspend the Member from membership of the Company for a specified period.
5.3 A resolution of the Board under this clause 5 is of no effect unless at least 7 days before the meeting of the Board at which such a resolution is passed the Member shall have had notice of such meeting and of what is alleged against the Member and of the intended resolution and he shall at such meeting and before passing of such resolution have an opportunity of giving orally or in writing any explanation or defence.
5.4 A Member may appeal to the Company in general meeting against a resolution of the Board within 7 days after the resolution is served on the Member in writing by lodging with the Secretary notice to that effect.
5.5 Upon receipt of a notice from a Member under this clause, the Secretary shall notify the Board which shall convene a general meeting of the Company to be held within 21 days after the date on which the Secretary received the notice.
5.6 At a general meeting convened under the above sub-clause 5.5:
(a) no business other than the question of the appeal shall be transacted;
(b) the Board and the Member shall be given full opportunity to state their respective cases orally or in writing or both;
(c) all Members present shall vote by secret ballot on the question of whether the resolution should be confirmed or revoked. For the purposes of this resolution only, all Members may be entitled to have one vote notwithstanding they may not enjoy voting rights normally; and
(d) if at the general meeting the Company passes a special resolution in favour of the confirmation of the resolution, the resolution is confirmed and the relevant Member is expelled.
6.1 Operation of Chapters
(a) The Company shall have operations in such States and Territories as the Board decides necessary from time to time.
(b) The Company’s operations in each State and Territory shall be in co-operation with the local Incorporated Chapter as directed by the Board.
6.2 Constitution of Incorporated Chapters
The Constitution of each Incorporated Chapter which seeks recognition or to maintain recognition as such by the Company must:
(a) be approved by the Board; and
(b) not be amended without the prior written approval of the Board.
6.3 Organisation of Unincorporated Chapters
Each Unincorporated Chapter must be operated in a manner that: HKABA Constitution 01 October 2015 Page 9
(a) is consistent with the rules specified in the By-laws; or
(b) has been previously approved by the Board.
6.4 Chapter President and Chapter Vice President
(a) The Ordinary Members of each Incorporated Chapter and Unincorporated Chapter shall meet no less than seven days prior to each Annual General Meeting of the Company for the following purposes:
(i) to nominate a committee to oversee the day to day running of the Chapter; and
(ii) to determine, by a vote of the majority of the committee members of that Chapter, who shall be the Chapter President and the Chapter Vice President of that Chapter.
(b) The conduct of the meeting(s) contemplated by clause 6.4(a) shall be governed by:
(i) the rules or constitution adopted by the Incorporated Chapter; or
(ii) the By-Laws applicable to the Unincorporated Chapter.
(c) Where there is no Incorporated Chapter or Unincorporated Chapter in a particular State or Territory, there will not be a Chapter President or Chapter Vice President in that State or Territory.
7 National General Meetings
7.1 Convening meetings
(a) A Director may, at any time, convene a general meeting of the Company.
(b) The Directors must convene annual general meetings in accordance with the Law, to be held at times to be determined by the Directors.
(c) National Members may also requisition or convene general meetings in accordance with the procedures for member-initiated meetings set out in the Law.
7.2 Use of Technology
(a) A general meeting may be held by the National Members communicating with each other by any technological means by which they are able simultaneously to hear each other and to participate in discussion.
(b) National Members need not all be physically present in the same place for a general meeting to be held.
(c) A National Member who participates in a general meeting held in accordance with this clause 7.2 is taken to be present and entitled to vote at the meeting.
8 Notice of National General Meetings
8.1 Compliance with Law
General meetings shall be convened in accordance with the requirements of and the procedures set out in the Law.
8.2 Notice of Meeting
A notice convening a general meeting must:
(a) specify the place, date and time of the meeting;
(b) state the general nature of the business to be transacted at the meeting;
(c) specify a place and may specify an electronic address for the purposes of proxy appointments; and
(d) comply with any other requirements of the Law.
8.3 Saving Provision
An accidental omission to send a notice of a general meeting or the postponement of a general meeting to any Member or the non-receipt of a notice by any National Member does not invalidate the proceedings at or any resolution passed at the general meeting.
9 National Annual General Meetings
9.1 Business of Annual General Meetings
The business of an Annual General Meeting will be to:
(a) consider the annual financial report of the Treasurer and the reports of the Directors or National President (as the case may be) and appoint an Auditor, if required by the Law;
(b) where relevant, fix the remuneration of the Auditor;
(c) transact any other business which under this Constitution may be transacted at a general meeting;
(d) elect a Treasurer who shall hold that office for the Term, if a person is not currently nominated by the Hong Kong Trade Development Council as its representative.
9.2 Notice of Meeting
It shall not be necessary for a notice of an Annual General Meeting to state that the business of the meeting includes the matters referred to in clause 9.1.
9.3 General Meeting
An Annual General Meeting is deemed to be a general meeting of the Company for the purposes of this Constitution.
9.4 Election of National President and National Vice President
Biennially, at the conclusion of the National Annual General Meeting, the Board of the Company shall meet to elect a National President and National Vice President. The Treasurer will be the chairperson of this meeting.
10 Postponement or Cancellation of National General Meetings
10.1 Postponement or Cancellation of General Meetings
The Directors may postpone or cancel any general meeting (other than a meeting convened by a Director under clause 7.1(b) and a Director who has convened a general meeting under clause 7.1(a) may postpone or cancel any general meeting, at any time before the day of the meeting.
10.2 Notice of Postponement or Cancellation
(a) The Directors must give notice of the postponement or cancellation to all persons entitled to receive notice of the meeting concerned.
(b) A notice postponing the holding of a general meeting must specify:
(i) the postponed date and time for the holding of the meeting; and
(ii) a place for the holding of the meeting which may be either the same as or different from the place specified in the notice convening the meeting.
(c) The number of clear days from the giving of a notice postponing the holding of a general meeting to the date specified in that notice for the holding of the postponed meeting must not be less than the number of clear days’ notice required to be given by this Constitution or the Law of the general meeting.
(d) The only business which may be transacted at a general meeting the holding of which has been postponed is the business specified in the notice convening the meeting.
(i) by the terms of an instrument appointing a proxy or attorney or of an appointment of a Representative, a proxy or an attorney or a Representative is authorised to attend and vote at a general meeting to be held on a specified date or at a general meeting or general meetings to be held on or before a specified date; and
(ii) the date for holding the meeting is postponed to a date later than the date specified in the instrument of proxy, power of attorney or appointment of Representative,
then that later date is deemed to be substituted for and to apply to the exclusion of the date specified in the instrument of proxy, power of attorney or appointment of Representative unless the Member appointing the proxy, attorney or Representative gives to the Company at the Office notice in writing to the contrary not less than 48 hours before the time to which the holding of the meeting has been postponed.
11 Proceedings at National General Meetings
11.1 Entitlement to Vote
(a) To be entitled to vote at an Annual General Meeting or a General Meeting the Member must have been a National Member and a Financial Member for not less than the twenty one days prior to that Annual General Meeting or General Meeting.
(b) Any National Member entitled to vote at the time of the meeting, may be present and vote in person or may be represented at any meeting of the Company by:
(ii) attorney; or
(iii) in the case of a body corporate which is a Member, a Representative.
11.2 Returning Officer
The Company may, by majority, elect a returning officer to supervise the counting of votes and the declaration of result by the returning officer shall be final. The persons eligible for election as a returning officer may include the Treasurer or an independent person who is not currently standing for election as a Director.
11.3 Quorum for general meetings
(a) No business may be transacted at a general meeting unless a quorum of Members is present when the meeting proceeds to business.
(b) A quorum for a meeting of Members is five National Members present in person, by proxy or (in the case of corporate Members) by Representative and entitled to vote, except where there is only one National Member and in such circumstances the quorum will consist of one National Member. The quorum must be present at all times during the meeting.
(c) In determining whether a quorum is present:
(i) individuals attending as proxies, attorneys or as Representatives of bodies corporate are counted;
(ii) if a Member has appointed more than one proxy, attorney or Representative then only one of them is counted; and
(iii) if an individual is attending, both as a Member and as a proxy, attorney or Representative, the individual is counted only once.
(d) If a quorum is not present within 15 minutes after the time appointed for a meeting:
(i) the meeting is automatically dissolved if it was convened by or on the requisition of Members; or
(ii) in any other case:
(A) it will stand adjourned to the same time and place 7 days’ after the meeting, or to another day, time and place determined by the Directors; and
(B) if at the adjourned meeting a quorum is not present within 30 minutes after the time appointed for the meeting two Financial Members will be a quorum.
11.4 Powers of Chairman of General Meeting
(a) The National President, or in the National President’s absence the National Vice President, will be the chairman (Chairman) at every general meeting.
(i) there is no National President or National Vice President; or
(ii) neither the National President or National Vice President is present within 15 minutes after the time appointed for holding the meeting; or
(iii) the National President or National Vice President are unwilling to act as chairman of the meeting,
the National Members present may elect a chairman.
(c) If no election is made pursuant to clause 11.4(b), then:
(i) the National Members may elect one of the Directors present as chairman; or
(ii) if no Director is present or is willing to take the chair, the National Members may elect one of the National Members present as Chairman.
(d) The Chairman may refuse a person admission to, or require a person to leave and not return to, a meeting if the person:
(i) refuses to permit examination of any article in the person’s possession; or
(ii) is in possession of any electronic or recording device, placard or banner, or other article which in the opinion of the Chairman is dangerous, offensive or liable to cause disruption.
(e) If there is a dispute at a general meeting about a question of procedure, the Chairman may determine the question.
11.5 Conduct of General Meetings
(a) The general conduct of each general meeting of the Company and the procedures to be adopted at the meeting will be determined by the Chairman, including the procedure for the proper and orderly casting or recording of votes at the meeting.
(b) The Chairman of each general meeting of the Company may, having regard where necessary to sections 250S and 250T of the Law, terminate debate or discussion on any matter, and may require any person to leave and not return to the meeting, whenever the Chairman considers it necessary or desirable for the proper conduct of the meeting.
(c) A decision by the Chairman of a general meeting pursuant to his powers under sub-clauses 11.5(a) or 11.5(b) is final.
11.6 Adjournment of General Meetings
(a) The Chairman of a meeting at which a quorum is present:
(i) in his or her discretion may adjourn a meeting with the general meeting’s consent (by ordinary resolution); and
(ii) must adjourn a general meeting if the general meeting (by ordinary resolution) directs him or her to do so.
(b) An adjourned meeting may take place at a different venue from the original meeting.
(c) The only business that can be transacted at an adjourned meeting is the unfinished business of the original meeting.
(d) If a general meeting has been adjourned for more than 30 days, notice of the adjourned meeting must be given to Members as if it were an original meeting, but otherwise it is not necessary to give notice of an adjourned meeting or the business of the adjourned meeting.
(e) No poll may be demanded on the question of adjournment of a meeting except by the Chairman.
(f) A resolution passed at a general meeting resumed after an adjournment is passed on the day it was passed.
11.7 Decisions of General Meetings
(a) Subject to the Law in relation to special resolutions, a resolution is carried if a majority of the votes cast on the resolution are in favour of the resolution.
(b) A resolution put to the vote of a meeting is decided on a show of hands unless a poll is demanded by:
(i) the Chairman;
(ii) any Member who has the right to vote on the resolution.
(c) A poll may be demanded:
(i) before a vote on a show of hands takes place;
(ii) after a vote on a show of hands takes place but before the declaration of the result of the show of hands; or
(iii) immediately after the declaration of the result of a show of hands.
(d) Unless a poll is demanded:
(i) a declaration by the Chairman that a resolution has been carried, carried by a specified majority, or lost; and
(ii) an entry to that effect in the minutes of the meeting,
are conclusive evidence of the fact without proof of the number or proportion of the votes in favour of or against the resolution.
(e) The demand for a poll may be withdrawn.
(f) A decision of a general meeting may not be impeached or invalidated on the ground that a person voting at the meeting was not entitled to do so.
11.8 Taking a poll
(a) A poll will be taken when and in the manner that the Chairman directs.
(b) The result of the poll will determine whether the resolution on which the poll was demanded is carried or lost.
(c) The Chairman may determine any dispute about the admission or rejection of a vote, and such determination, if made in good faith, will be final and conclusive.
(d) No poll may be demanded on the election of the Chairman.
(e) A poll demanded on the adjournment of a meeting must be taken immediately.
(f) After a poll has been demanded at a meeting, the meeting may continue for the transaction of business other than the question on which the poll was demanded.
11.9 Casting vote of Chairman
In the event of an equality of votes the Chairman both on a show of hands and on a poll has a casting vote (in addition to the Chairman’s vote as a Member, proxy, attorney or Representative on a show of hands or on a poll).
12 Votes of Members
12.1 National Member’s Entitlement to Vote
Subject to this Constitution and to any rights or restrictions attaching to any class of Members:
(a) every National Member may vote at a general meeting; and
(b) subject to the appointment of proxies pursuant to this Constitution and the Law, on a show of hands every National Member has one vote.
12.2 Vote of Member of Unsound Mind
If a Member is of unsound mind or is a person whose personal estate is liable to be dealt with in any way under the law relating to mental health then the Member’s legal personal representative or trustee or such other person as properly has the management of the Member’s estate may exercise any rights of the Member in relation to a general meeting as if the legal personal representative, trustee or other person were the Member.
(a) An objection may not be raised to the right of a person to attend or vote at the meeting or adjourned meeting except at that meeting or adjourned meeting;
(b) An objection must be referred to the Chairman of the meeting, whose decision is final.
(c) A vote which the Chairman does not disallow pursuant to an objection is valid for all purposes.
13 Votes by Proxy
(a) A Member who is entitled to attend and cast a vote at a meeting of the Company may appoint a person as the Member’s proxy to attend and vote at the meeting on that Member’s behalf.
(b) The proxy may, subject to the Law, to vote on a show of hands.
(c) A proxy may demand or joint in demanding a poll.
13.2 Appointment of Proxy
(a) A Member who is entitled to vote at a meeting may appoint:
(i) one proxy if the Member is only entitled to one vote; and
(ii) one proxy for each vote if the Member is entitled to more than one vote.
(b) A Member who is a natural person may appoint a proxy by a written appointment signed by the appointor or the appointor’s attorney.
(c) A Member which is a corporation may appoint a proxy by a written appointment executed in accordance with section 127 of the Law or signed by a director, secretary or attorney of the appointor.
(d) A proxy must be a Member of the same subclass as the Member entitled to vote.
13.3 Form of Appointment
(a) An appointment of a proxy may be in any form which the Directors may in any case approve.
(b) An appointment of a proxy may be a standing one.
(c) An undated appointment is deemed to have been dated on the day it is given to the Company.
(d) An appointment of a proxy is valid if it is signed by the Member making the appointment and contains the following information:
(i) the Member’s name and address;
(ii) the Company’s name;
(iii) the proxy’s name or the name of the office held by the proxy; and
(iv) the meetings at which the appointment may be used.
13.4 Rights and Obligations of Proxy
(a) Unless otherwise provided in the appointment of a proxy, attorney or Representative or in the Law, an appointment will be taken to confer authority:
(i) to vote or abstain as the proxy chooses except to the extent that the instrument of appointment of the proxy indicates the manner in which the proxy must vote on any resolution;
(ii) to vote or abstain on a poll or show of hands in accordance with any instructions on the appointment;
(iii) to agree to a meeting being convened by shorter notice than is required by the Law or by this Constitution;
(iv) to speak on any proposed resolution on which the proxy, attorney or Representative may vote;
(v) to demand or joint in demanding a poll on any resolution on which the proxy, attorney or Representative may vote;
(vi) even though the instrument may refer to a specific resolution and may direct the proxy, attorney or Representative how to vote on those resolutions:
(A) 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;
(B) to vote on any procedural motion, including any motion to elect the chairperson, to vacate the chair or to adjourn the meeting;
(C) to act generally at the meeting; and
(vii) 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.
(b) If the proxy has two or more appointments that specify different ways to vote on a resolution, the proxy must not vote on a show of hands.
(c) If the proxy is also a Member, this subclause does not affect the way in which that person can cast any votes enjoyed by him/her as a Member.
(d) No appointment of a proxy is invalid by reason that:
(i) it does not contain the address of the appointor or of a proxy;
(ii) it does not contain in relation to any or all proposed resolutions an indication of the manner in which the proxy is to vote.
13.5 Lodgement of proxy and other instruments
(a) The written appointment of a proxy is invalid unless:
(i) the instrument of appointment; and
(ii) if the instrument is not signed by the appointor, the power of attorney (if any) or other authority under which it is executed, or a notarially certified copy of the power of attorney or other authority,
is or are received by the Company, at least 48 hours (unless otherwise specified in the notice of meeting to which the proxy relates) before:
(iii) the time for holding the meeting or adjourned meeting at which the appointee proposes to vote; or
(iv) the taking of a poll on which the appointee proposes to vote.
(b) If a Member by power of attorney appoints an attorney to act on the Member’s behalf at a meeting of the Company:
(i) the power of attorney; or
(ii) proof of the power of attorney to the satisfaction of the Directors,
must be received by the Company prior to the commencement of the meeting, together with such evidence of the due execution and non-revocation of the power of attorney as the Board may require. If the Member does not comply with this clause, the Member’s attorney is not entitled to act under the power at the relevant meeting.
(c) The Company is taken to have received an appointment of a proxy and any power of attorney or other authority under which it was executed when they are received at:
(i) the Office; or
(ii) a place, facsimile number or electronic address specified for that purpose in the notice of meeting.
A vote cast in accordance with an appointment of proxy or power of attorney is valid even if before the vote was cast the appointor has:
(b) become of unsound mind; or
(c) revoked the proxy or power;
unless any written notification of the death, unsoundness of mind, revocation or transfer was received by the Company before the relevant meeting or adjourned meeting.
14 Representatives of corporations
Any Member which is a corporation may authorise a natural person to act as its Representative as provided by the Law. A certificate which on the face of it has been duly executed by the corporation may be accepted by the Company as prima facie evidence of the authority or revocation of authority (as the case may be) of a natural person to act as the Representative of the corporation.
15 Board of Directors
15.1 Minimum Number of Directors
Unless otherwise determined by the Members entitled to vote in general meeting there will be a minimum of five Directors.
15.2 Composition of Board of Directors
The Board of Directors shall consist of:
(a) the National President and the National Vice President;
(b) the Chapter President of each Incorporated Chapter and Unincorporated Chapter;
(c) the person who was the National President immediately before the current National President; and
(d) the Treasurer.
15.3 Additional and casual Directors
(a) Subject to minimum and any maximum number of Directors as provided in this Constitution, the Directors may appoint any person as a Director to fill a casual vacancy provided that such person holds a share in the same subclass as the person he or she is replacing.
(b) A Director appointed under this clause will hold office until the next annual general meeting of the Company when the Director may be re-elected.
(a) Subject to clause 15.4(b):
(i) at each Annual General Meeting all Directors must retire with such retirement effective as and from the conclusion of the meeting; and
(ii) a retiring Director is eligible for re-election.
(b) The National President and National Vice President may hold office in that position:
(i) for an initial period of two Terms, after such initial term he or she shall automatically retire with effect from the end of the relevant annual general meeting and be eligible for re-election to that position; and
(ii) for two subsequent one-year Terms, after each such Term he or she shall automatically retire with effect from the end of the relevant annual general meeting and and be eligible for re-election to that position,
(iii) the same person must not hold office as National President or National Vice President for more than four consecutive Terms; and
(iv) the person who is appointed as a Director pursuant to clause 15.2(c) is not eligible for election as National President or National Vice President for the following Term.
(c) Neither the National President nor the National Vice President may be a Chapter President or Chapter Vice President. In the event that a person appointed as:
(i) Chapter President is elected as National President or National Vice President, that person is deemed to have retired as Chapter President of that Chapter and the Chapter Vice President of that Chapter is deemed to be appointed as Chapter President; or
(ii) Chapter Vice President is elected as National President or National Vice President, that person is deemed to have retired as Chapter Vice President of that Chapter.
15.5 Qualifications of Director’s Appointment
A Director removed by the Company by resolution of the National Members is not eligible for re-election as a Director of the Company.
15.6 Vacation of office
In addition to the circumstances in which the office of a Director becomes vacant by virtue of the Law, the office of a Director immediately becomes vacant if he or she:
(a) becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health or is incapable of performing the duties of a Director;
(b) fails to attend three (3) consecutive meetings of the Board without special leave of absence from the Directors;
(c) resigns from his or her office by notice in writing to the Company; or
(d) is removed by a resolution of the National Members.
16 Powers and Duties of Directors
16.1 Directors to manage Company
The business of the Company is managed by or under the direction of the Directors who may exercise all powers of the Company that this Constitution or, the Law do not require to be exercised by the Company in general meeting.
16.2 Powers of Directors
Without limiting the generality of clause 16.1, the Board may exercise all the powers of the Company to:
(a) borrow money;
(b) charge any property or business of the Company or all or any of its uncalled capital; and
(c) issue debentures or give any other security for a debt, liability or obligation of the Company or of any other person.
16.3 Appointment of attorneys
(a) The Directors may, by power of attorney, appoint any person or persons to be the attorney or attorneys of the Company for the purposes and with the powers, authorities and discretions vested in or exercisable by the Directors for such period and subject to such conditions as they think fit.
(b) Any such power of attorney may contain such provisions for the protection and convenience of persons dealing with the attorney as the Directors think fit and may also authorise the attorney to delegate all or any of the powers, authorities and discretions vested in the attorney.
16.4 Execution of Company cheques
Cheques, promissory notes, bankers’ drafts, bills of exchange and other negotiable instruments, and all receipts for money paid to the Company, must be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner and by such persons as the Directors determine from time to time.
16.5 Remuneration for Directors
The Company may not make any payments to Directors other than:
(a) for the payment of out-of-pocket expenses incurred by a Director in the performance of any duty as director of the Company where the amount payable does not exceed an amount previously approved by the Directors of the Company; or
(b) for payment of any service rendered to the Company by the Director in a professional or technical capacity, other than in the capacity as Director where the provision of the service has the prior approval of the Directors of the Company and where the amount payable is approved by the Directors of the Company and is not more than an amount which commercially would be reasonable payment for the service.
17 Proceedings of Directors
17.1 Directors’ Meetings
The Directors may meet together, adjourn and regulate their meetings as they think fit.
A quorum for meetings of Directors may be fixed by the Directors and unless so fixed, is five. Directors are not entitled to appoint alternative Directors.
17.3 Notice of Board Meetings
(a) Any Director may summon a meeting of the Directors.
(b) An accidental omission to send a notice of a meeting of Directors to any Director or the non-receipt of such a notice by any Director does not invalidate the proceedings at or any resolution passed at the meeting.
17.4 Use of Technology
(a) Subject to clause 17.4(d), a Directors’ meeting may be held by the Directors communicating with each other by any technological means by which they are able simultaneously to hear each other and to participate in discussion.
(b) The Directors need not all be physically present in the same place for a Directors’ meeting to be held.
(c) A Director who participates in a meeting held in accordance with clause 17.4(a) is taken to be present and entitled to vote at the meeting.
(d) Directors can, by majority consent in writing, withdraw their consent to the means of communication between Directors proposed for a Directors’ meeting if the Directors do so at least 7 days before the meeting.
17.5 Decisions of Directors
(a) Questions arising at a meeting of Directors are to be decided by a majority of votes of the Directors present and voting.
(b) The chairman of a meeting has a casting vote in addition to his or her deliberative vote, except where only two Directors are present and entitled to vote.
17.6 Directors’ Interests
(a) A Director who has a material personal interest in a matter that is to be considered at a meeting of Directors must not:
(i) vote on the matter or be present while the matter is being considered at the meeting; or
(ii) be counted in the quorum in relation to that matter,
if to do so would be contrary to the Law.
(b) Each Director must disclose to the Board particulars of:
(i) any material contract in which he or she is interested, including the names of the parties to the contract, particulars of the contract, and his interest in the contract; and
(ii) any material personal interest in a matter that is being considered at a meeting of the Directors.
(c) Voting by a Director contrary to this clause, or failure by a Director to make disclosure under this clause, does not render void or voidable a contract in which the Director has an interest.
(d) A Director and any firm, body or entity in which a Director has a direct or indirect interest may in any capacity:
(i) enter into any contract or arrangement with the Company;
(ii) be appointed to and hold any office or place of profit under the Company, other than the office of auditor; and
(iii) act in a professional capacity, other than as auditor, for the Company, and provided that he or she makes disclosure as required by this clause, may receive and retain for his or her own benefit any remuneration, profits or benefits as if he or she were not a Director.
17.7 Remaining Directors
(a) The Directors may act even if there are vacancies on the Board.
(b) If the number of Directors is not sufficient to constitute a quorum at a Directors’ meeting, the Director or Directors may act only to:
(i) appoint a Director; or
(ii) convene a general meeting.
(a) The National President (or in his absence the National Vice President) shall act as chairman of Board meetings.
(b) If the National President or National Vice President is not present at any Board meeting within 15 minutes after the time appointed for the meeting to begin, the Directors present must elect a Director to be chairperson of the meeting.
17.9 Directors’ Committees
(a) The Directors may delegate any of their powers, other than those which by law must be dealt with by the Directors as a board, to a committee or committees.
(b) The Directors may at any time revoke any delegation of power to a committee.
(c) At least one member of each committee must be a Director.
(d) A committee must exercise its powers in accordance with any directions of the Directors and a power exercised in that way is taken to have been exercised by the Directors.
(e) A committee may be authorised by the Directors to sub-delegate all or any of the powers for the time being vested in it.
(f) Meetings of any committee will be governed by the provisions of this Constitution which deal with Directors’ meetings so far as they are applicable and are not inconsistent with any directions of the Directors.
17.10 Written resolutions
(a) The Directors may pass a resolution without a Board meeting being held if all the Directors 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. The resolution is passed when the last Director signs.
(b) For the purposes of clause 17.10(a), separate copies of a document may be used for signing by Directors if the wording of the resolution and statement is identical in each copy.
(c) Any document referred to in this clause may be in the form of a facsimile transmission or electronic notification.
(d) If a Directors’ meeting is held in accordance with this clause, the minutes must record that fact.
(e) This clause applies to meetings of Directors’ committees as if all members of the committee were Directors.
17.11 Validity of acts of Directors
If it is discovered that:
(a) there was a defect in the appointment of a person as a Director, or member of a Directors’ committee; or
(b) a person appointed to one of those positions was disqualified,
all acts of the Directors or the Directors’ committee before the discovery was made are as valid as if the person had been duly appointed and was not disqualified.
(a) The Directors must cause minutes to be made of:
(i) the names of the Directors present at all general meetings, Directors’ meetings and meetings of Directors’ committees;
(ii) all proceedings of general meetings, Directors’ meetings and meetings of Directors’ committees;
(iii) appointments of officers, but only if the Directors resolve that a minute of the appointment should be made; and
(iv) all disclosures of interests made pursuant to clause 17.6.
(b) Minutes must be signed by the chairman of the meeting or by the chairman of the next meeting of the relevant body, and if so signed will as between the Members be conclusive evidence of the matters stated in such minutes.
(a) The Treasurer shall be that person who is:
(i) the person currently nominated by the Hong Kong Trade Development Council as its representative; or
(ii) if there is no such nominee, a Member of the Company and who is elected to that position at an Annual General Meeting.
(b) The Treasurer has the following duties:
(i) to receive all moneys paid to the Company and issue the necessary receipts on behalf of the Company;
(ii) to deposit all moneys received to the credit of the Company in a bank account approved by the Company;
(iii) to keep detailed accounts of all receipts and expenditure and prepare an annual statement of account;
(iv) to arrange for the payment of all amounts properly payable from the funds of the Company in such manner, and in conformity with such procedures, as the Constitution provide and as the Board may from time to time prescribe;
(v) to attend and vote at Board Meetings; and
(vi) unless another person is appointed as Secretary, to act as Secretary of the Company and comply with the responsibilities of a company secretary under the Law.
19.1 Common seal
The Directors may resolve that the Company should no longer have a Seal. If the Company has a Seal:
(a) the Directors must provide for the safe custody of the Seal;
(b) it must not be used except with the authority of the Directors or a Directors’ committee authorised to permit use of the Seal;
(c) every document to which the Seal is affixed must be signed by a Director and be countersigned by another Director, the Secretary or another person appointed by the Directors to countersign the document; and
(d) the Directors may determine by resolution either generally or in any particular case that the signature of any Director or the Secretary to a document to which the Seal or a duplicate seal or certificate seal is affixed may be a facsimile applied to the document by specified mechanical means.
19.2 Duplicate seal
If the Company has a Seal, the Company may have one or more duplicate seals of the Seal which:
(a) must be a facsimile of the Seal with the addition on its face of the words ‘Duplicate Seal’; and
(b) must only be used with the authority of the Directors or a Directors’ committee.
20 Inspection of Records
20.1 Inspection by Members
(a) Subject to the Law, the Directors may determine whether and to what extent, and at what times and places and under what conditions, the financial records and other documents of the Company or any of them will be open for inspection by Members other than Directors.
(b) A Member other than a Director does not have the right to inspect any financial records or other documents of the Company unless the Member is authorised to do so by a court order or a resolution of the Directors.
21.1 Service of notices and other documents
(a) Notice may be given by the Company to any person who is entitled to notice under this Constitution by:
(i) serving it on the person personally;
(ii) leaving it at the Registered Address of that person or at the address (if any) supplied by the person to the Company for sending notices to the person;
(iii) sending it by post, facsimile transmission or electronic notification to the person at the person’s Registered Address or the address supplied by the person to the Company for sending notices to the person; or
(iv) advertising once in a National daily newspaper.
(b) Where the Secretary or other authorised officer of the Company believes on reasonable grounds that the Member is not known at the Member’s registered address and the Company has made an enquiry at that registered address as to the whereabouts of the Member, and that enquiry elicits no response or a response indicating that the Member or the Member’s present whereabouts are unknown, any future notice is taken to be given to the Member if that notice is posted up in the Office for a period of 48 hours, and is taken to have been duly served on the Member at the commencement of that period.
(c) A Member whose Registered Address is not in Australia may specify in writing an address in Australia as the Member’s Registered Address within the meaning of this clause. HKABA Constitution 01 October 2015 Page 27
(d) All notices sent by post outside Australia must be sent by prepaid airmail post.
(e) Subject to the Law the signature to a written notice given by the Company may be written or printed.
(f) A notice sent by post by properly addressing, prepaying and posting an envelope or wrapper containing the notice is taken to be served on the day following the day on which it was so posted.
(g) A notice sent by facsimile transmission or electronic notification by properly addressing the facsimile transmission or electronic notification and transmitting it is taken to be served on the day of its transmission except if transmitted after 5.00pm, Sydney Time, in which case it is taken to be served on the next day.
(h) A notice given by advertisement is taken to be served on the date on which the advertisement first appears in a newspaper.
(i) A certificate in writing signed by a Director, Secretary or other officer of the Company, or by any person that the Company has engaged to maintain the Register, that a document or its envelope or wrapper was addressed and stamped and was posted is conclusive evidence of those matters.
21.2 Persons entitled to notice
(a) Notice of every general meeting must be given to:
(i) every Member entitled to attend;
(ii) every Director and Chapter Committee Member; and
(iii) the Auditor.
(b) No other person is entitled to receive notice of a general meeting.
22 Audit and Financial Records
22.1 Company to keep financial records
(a) The Directors must cause the Company to keep written financial records and to prepare financial documents and reports in accordance with the requirements of the Law.
(b) The Directors must cause the financial records and financial documents of the Company to be audited in accordance with the requirements of the Law.
23 Winding up
(a) Every Member of the Company undertakes to contribute to the assets of the Company if the Company is wound up during the time they are a Member, or within one year afterwards, subject to the Law, for payment of the debts and liabilities of the Company contracted before the time at which they cease to be a Member and the costs charges and expenses of the winding up the same and for the adjustment of the rights and contributories amongst themselves such amount as may be required not exceeding one dollar ($1).
(b) If upon the winding up or dissolution of the Company there remains, after the satisfaction of all its debts and liabilities, any property whatsoever the same shall be paid to another institution or institutions having objects similar to the objects of the Company and whose Constitution shall prohibit the distribution of its income and property among its members, and who is required under its Constitution to apply all its profits (if any) in promoting its objects, and such institution to be determined by the Company at or before the time of winding up.
24.1 Indemnity to officers
(a) To the extent permitted by law, the Company indemnifies every person who is or has been an officer of the Company against any liability incurred by that person:
(i) as such an officer of the Company; and
(ii) to a person other than the Company or a related body corporate of the Company,
(iii) unless the liability arises out of conduct on the part of the officer which:
(iv) involves a lack of good faith; or
(v) is contrary to the Company’s express instructions.
24.2 The Company indemnifies every officer of the Company against any liability for costs and expenses incurred by the person in his or her capacity as officer of the Company:
(i) in defending any proceedings, whether civil or criminal, in which judgment is given in favour of the person or in which the person is acquitted; or
(ii) in connection with an application, in relation to such proceedings, in which the Court grants relief to the person under the Law.
(b) For the purposes of this clause, “officer” means any person who is or has been a director, secretary or executive officer of the Company.
25 Amendment or Alteration of Constitution
Any amendment or alteration of this Constitution shall require a Special Resolution as to which not less than 21 days written notice (such notice complying with s249L of the Law) is given to all Members and which is passed at a general meeting by not less than 75% of the votes cast by National Members entitled to vote with such amendment or alteration to take effect from the date of the Special Resolution being passed or a date specified in the Special Resolution.
The Board may at any time by resolution make, repeal and amend such by-laws and regulations not inconsistent with this Constitution for or with respect to:
(a) all matters necessary or expedient for carrying out the functions or objects of the Company;
(b) the regulation of its affairs or the affairs and operations of the Unincorporated Chapters;
(c) the management and control of its Members, the Board or the Unincorporated Chapters.