Constitution of Urabba Parks/Section 10

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Chapter 1 >>Part 2 >>Division 1 >>Subdivision B >>Section 10

Effect of laws[edit | edit source]

(1) Subject to this section, a law or rule falling in the table in subsection (3) have effect as if the law or rule is expressed in this Constitution.

(2) A law falling in a particular item in the table in subsection (3) is of no effect to the extent such law is inconsistent with a law falling in a previous item in the table.

Sources of law[edit | edit source]

(3) This table sets out the particular sources of law:

Table 6: Particular sources of law
Item Source of law
1 Provisions of this Constitution falling in an entrenchment, provided that a provisions shall be of no effect to the extent they the provision areis inconsistent with provisions another provision falling in another entrenchment above or falling in the entrenchment
1A Laws of non-state jurisdictions with legislative rights over Urabba Parks
2 Provisions contained in enactments of Urabba Parks other than those actually expressed in this Constitution falling in an entrenchment, provided that a provision shall be of no effect to the extent that the provision is inconsistent with provisions falling in another entrenchment above or falling in the entrenchment
3 Provisions actually expressed in this Constitution
4 Enactments of Urabba Parks
5 Precedents binding on the judicature of Urabba Parks
6 Provisions in the Corporations Act 2001 of the Parliament of the Commonwealth that would apply as mandatory rules or replaceable rules to a public company not registered under the Australian Charities and Not-for-profits Commission Act 2012 of the Parliament of the Commonwealth6, excepting Replaceable Rules that affect the appointment or term of a director, secretary or other officer
7 Law and rules existing at the establishment of jurisdiction

Provision relevant to purposes and not-for-profit nature[edit | edit source]

(4) No law of Urabba Parks shall be of effect to the extent that the law requires or allows for the application of money or other property for purposes that are not charitable purposes, or incidental or necessary to the carrying out of those purposes.

(5) Despite any other law, Urabba Parks shall:

(a) only have objects that are charitable purposes, or that are incidental or ancillary to, and in furtherance or in aid of to them; and
(b) not have a disqualifying purpose.

(6) In this section, charitable purpose has the meaning given by section 12 of the Charities Act 2013 of the Parliament of the Commonwealth (CA2013) and disqualifying purpose has the meaning given by section 11 of CA2013.

Provision relevant to compliance with Australian law[edit | edit source]

(7) No law of Urabba Parks shall be of effect to the extent that the law requires or allows for a person to engage in conduct, or omit to engage in conduct, if the conduct or omission may be dealt with:

(a) as a criminal offence under an Australian law (even if the offence is a summary offence); or
(b) by way of a civil penalty under an Australian law.

Note to this section[edit | edit source]

6. Item 6 of the table in subsection 10(3) – The table below sets out the applicability under this item of provisions set out in section 141 of the Corporations Act 2001 of the Parliament of the Commonwealth. Provisions that do not apply as replaceable rules or mandatory rules to a public companies not registered under the Australian Charities and Not-for-profits Commission Act 2012, or of which deal with the terms of office of directors, secretaries and other officers, are deemed to be not applicable. Provisions that are inconsistent with the Constitution of Urabba Parks or other legislation are deemed to be displaced. Provisions deemed applicable are subject to Acts of the Parliament of Urabba Parks and binding precedent set by the Corporate Judicature.

Applicability of provisions set out in section 141 of the Corporations Act 2001
Item Rule Section Applicability
Officers and employees
1 Voting and completion of transactions—directors of proprietary companies 194 Not applicable
2 Powers of directors 198A Displaced (see note I)
3 Negotiable instruments 198B Applicable
4 Managing director 198C Not applicable
5 Company may appoint a director 201G Not applicable
6 Directors may appoint other directors 201H Not applicable
7 Appointment of managing directors 201J Not applicable
8 Alternate directors 201K Not applicable
9 Remuneration of directors 202A Displaced (see note II)
10 Director may resign by giving written notice to company 203A Not applicable
11 Removal by members—proprietary company 203C Not applicable
12 Termination of appointment of managing director 203F Not applicable
13 Terms and conditions of office for secretaries 204F Not applicable
Inspection of books
14 Company or directors may allow member to inspect books 247D Applicable
Director’s meetings
15 Circulating resolutions of companies with more than 1 director 248A Applicable (see note IV)
16 Calling directors’ meetings 248C Applicable (see note IV)
17 Chairing directors’ meetings 248E Applicable (see note IV)
18 Quorum at directors’ meetings 248F Applicable (see note IV)
19 Passing of directors’ resolutions 248G Applicable (see note IV)
Meetings of members
20 Calling of meetings of members by a director 249C Displaced (see note V)
21 Notice to joint members 249J(2) Applicable (see note VI)
22 When notice by post or fax is given 249J(4) Applicable (see note VI)
22A When notice under paragraph 249J(3)(cb) is given 249J(5) Applicable (see note VI)
23 Notice of adjourned meetings 249M Applicable (see note VI)
24 Quorum 249T Applicable (see note VI)
25 Chairing meetings of members 249U Applicable (see note VI)
26 Business at adjourned meetings 249W(2) Applicable (see note VI)
27 Who can appoint a proxy

[replaceable rule for proprietary companies only]

249X Applicable (see note VI)
28 Proxy vote valid even if member dies, revokes appointment etc. 250C(2) Applicable (see note VI)
29 How many votes a member has 250E Applicable (see note VI)
30 Jointly held shares 250F Applicable (see note VI)
31 Objections to right to vote 250G Applicable (see note VI)
32 How voting is carried out 250J Applicable (see note VI)
33 When and how polls must be taken 250M Applicable (see note VI)
Shares
33A Pre‑emption for existing shareholders on issue of shares

in proprietary company

254D Not applicable
33B Other provisions about paying dividends 254U Displaced (see note VII)
34 Dividend rights for shares in proprietary companies 254W(2) Not applicable
Transfer of shares
35 Transmission of shares on death 1072A Displaced (see note VIII)
36 Transmission of shares on bankruptcy 1072B Displaced (see note VIII)
37 Transmission of shares on mental incapacity 1072D Displaced (see note VIII)
38 Registration of transfers 1072F Displaced (see note VIII)
39 Additional general discretion for directors of proprietary companies to refuse to register transfers 1072G Not applicable

Note I: The following sections set out the powers of Urabba Parks:

(a) section 1 (legislative);
(b) section 61 (executive);
(c) section 71 (judicial).

Note II: The following provisions deal with remuneration of directors:

(a) section 48 (legislative directors);
(b) section 66 (Ministers);
(c) subsection 72(3) (presenters of judicial directors).

Note III: A director:

(a) who is a member of the House of Ordinaries may resign as a member of the House in writing addressed to the Speaker (see section 37), and ceases to be a director by virtue of ceasing to be a member (see subsection 21(4));
(b) who is a judicial officer may resign from office in writing addressed to the Manager‑General (see subsection 72(8)), and ceases to be a director by virtue of ceasing to hold judicial office (see subsection 70(1)).

Note IV: The Parliament may set the rules of proceeding of:

(a) Houses of the Parliament: see section 50;
(b) judicial bodies: see section 79.

Note V: Proceedings of members are usually initiated by the Manager‑General in Council, in the case of general elections (see section 32) and referenda (see section 128). The Speaker may issue the writ for the election to fill a casual vacancy in the House of Ordinaries: see section 33.

Note VI: The Parliament may legislate for the conduct of proceedings of members of Urabba Parks: see subparagraph 51(b)(xviii).

Note VII: The Parliament may legislate for a charity distribution to ordinary members: see subparagraph 51(b)(iii).

Note VIII: Membership is not transferrable or transmissible except as provided under law: see section 113.

Relevant notes from the Explanatory Memorandum[edit | edit source]

76. Subsection (1) provides that, subject to this section, laws made under the Constitution have effect as if expressed in the Constitution. This means that matters that are usually covered by corporate constitutions, such as the rights of members and the conduct of their meetings, may be dealt with by way of laws made by the Parliament. Subsection (2) provides for the invalidity of laws in the case of inconsistency with higher-ranking laws as set out in subsection (3).

77. Subsection (3) creates a hierarchy of law and names the various sources of the law; such as

(A) provisions of this Constitution falling in an entrenchment, provided that provisions shall be of no effect to the extent they are inconsistent with provisions falling in another entrenchment above or falling in the entrenchment (see note 353 for more information on this table);
(B) law of entities with legislative rights over Urabba Parks (item 1A) – this item provides for the effect of the law of those entities as laws of Urabba Parks;
(C) provisions contained in enactments of Urabba Parks other than those actually expressed in this Constitution falling in an entrenchment, provided that provisions shall be of no effect to the extent they are inconsistent with provisions falling in another entrenchment above or falling in the entrenchment (item 2) – this allows for the entrenchment of certain laws other than this Constitution, such as entrenchable matter falling in subclause 3(2) of Schedule 2 (see note 358);
(D) provisions actually expressed in this Constitution other than provisions falling in a previous item (item 3) – this allows for the supremacy of the Constitution over other laws (with the exception of those laws falling above);
(E) enactments of Urabba Parks other than laws falling in a previous item of this table (item 4) – this will represent the overwhelming majority of legislation;
(F) precedent binding on the judicature of Urabba Parks (item 5);
(G) provisions in the Corporations Act 2001 that would apply either as mandatory rules or replaceable rules to a public company not registered under the Australian Charities and Not-for-profits Commission Act 2012, excepting replaceable rules that affect the appointment or term of a director, secretary or other officer (item 6); and
(H) law and rules existing at the establishment of jurisdiction (item 7).

78. Subsection (4) also limits the effect of laws that would cause Urabba Parks to apply its money or other property to objects other than charitable purposes, or engage in activity that may be dealt with as an indictable offence or civil penalty under Australian law. Subsection (5) limits the objects of Urabba Parks to ‘charitable purposes’ and provides Urabba Parks shall not have ‘disqualifying purposes’ (terms which under subsection (6) have the meaning given by sections 11 and 12 of the Charities Act 2013). Furthermore subsection (7) voids laws if the law would make a person liable for a criminal offence or civil penalty under Australian law. These provisions are relevant to ensure Urabba Parks’ adherence to ACNC Governance Standards 1 and 3.