Editing Constitution of Urabba Parks/Section 10

Jump to navigation Jump to search
Warning: You are not logged in. Your IP address will be publicly visible if you make any edits. If you log in or create an account, your edits will be attributed to your username, along with other benefits.

The edit can be undone. Please check the comparison below to verify that this is what you want to do, and then publish the changes below to finish undoing the edit.

Latest revision Your text
Line 1: Line 1:
[[Constitution of Urabba Parks/Contents|Table]]|[[Constitution of Urabba Parks/Notes|Notes]]|[[Constitution of Urabba Parks/Section 9|Previous]]|[[Constitution of Urabba Parks/Section 11|Next]]|[[Constitution of Urabba Parks/Download|Download]]<br>{{Navbar|L=Constitution of Urabba Parks|Ch=1|Pt=2|Div=1|Sdiv=B|S=10}}
[[Constitution of Urabba Parks/contents|Table]]|[[Constitution of Urabba Parks/notes|Notes]]|[[Constitution of Urabba Parks/Section 9|Previous]]|[[Constitution of Urabba Parks/Section 11|Next]]|[[Constitution of Urabba Parks/download|Download]]


= <span id="s1"></span>Effect of laws =
= Effect of laws =


(1) Subject to this section, a law or rule falling in the table in subsection&nbsp;(3) have effect as if the law or rule is expressed in this Constitution.
(1)  Subject to this section, a law or rule falling in the table in subsection&nbsp;(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&nbsp;(3) is of no effect to the extent such law is inconsistent with a law falling in a previous item in the table.
(2)  A law falling in a particular item in the table in subsection&nbsp;(3) is of no effect to the extent such law is inconsistent with a law falling in a previous item in the table.


== <span id="s3"></span>Sources of law ==
== Sources of law ==
(3) This table sets out the particular sources of law:
(3)  This table sets out the particular sources of law:
{| class="wikitable"
{| class="wikitable"
|+Table 6: Particular sources of law
|+Table 6: Particular sources of law
Line 14: Line 14:
! style="text-align:left;vertical-align:top;" - |Source of law
! style="text-align:left;vertical-align:top;" - |Source of law
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item1"></span>1
|1
|Provisions of this Constitution falling in an entrenchment, provided that a provisions shall be of no extent the provision is inconsistent with a provision falling in another entrenchment above or falling in the entrenchment
|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
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item1A"></span>1A
|1A
|Laws of non-state jurisdictions with legislative rights over Urabba Parks  
|Laws of non-state jurisdictions with legislative rights over Urabba Parks  
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item2"></span>2
|2
|Provisions contained in enactments of Urabba&nbsp;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 a provision falling in another entrenchment above or falling in the entrenchment
|Provisions contained in enactments of Urabba&nbsp;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
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item3"></span>3
|3
|Provisions actually expressed in this Constitution
|Provisions actually expressed in this Constitution
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item4"></span>4
|4
|Enactments of Urabba&nbsp;Parks
|Enactments of Urabba&nbsp;Parks
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item5"></span>5
|5
|Precedents binding on the judicature of Urabba&nbsp;Parks
|Precedents binding on the judicature of Urabba&nbsp;Parks
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item6"></span>6
|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 Commonwealth<sup>[[Constitution of Urabba Parks/Section 10#Notes|6]]</sup>, excepting Replaceable Rules that affect the appointment or term of a director, secretary or other officer
|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 Commonwealth<sup>6</sup>, excepting Replaceable Rules that affect the appointment or term of a director, secretary or other officer
|
|- style="vertical-align:top;"
|- style="vertical-align:top;"
|<span id="item7"></span>7
|7
|Law and rules existing at the establishment of jurisdiction
|Law and rules existing at the establishment of jurisdiction
|}
|}


== <span id="s4"></span>Provision relevant to purposes and not-for-profit nature ==
== Provision relevant to purposes and not-for-profit nature ==
(4) No law of Urabba&nbsp;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.
(4)  No law of Urabba&nbsp;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:
 
:<span id="par5a"></span>(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
 
:<span id="par5b"></span>(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.
 
== <span id="s7"></span>Provision relevant to compliance with Australian law ==
(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:
 
:<span id="par7a"></span>(a)  as a criminal offence under an Australian law (even if the offence is a summary offence); or
 
:<span id="par7b"></span>(b)  by way of a civil penalty under an Australian law.
 
= <span id="Notes"></span>Note to this section =
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.
{| class="wikitable"
|+Applicability of provisions set out in section 141 of the ''Corporations Act 2001''
! colspan="2" |Item
!Rule
!Section
!Applicability
|-
! colspan="5" |'''Officers and employees'''
|-
|1
| colspan="2" |Voting and completion of transactions—directors of proprietary  companies
|194
|Not applicable
|-
|2
| colspan="2" |Powers of directors
|198A
|Displaced (see note I)
|-
|3
| colspan="2" |Negotiable instruments
|198B
|Applicable
|-
|4
| colspan="2" |Managing director
|198C
|Not applicable
|-
|5
| colspan="2" |Company may appoint a director
|201G
|Not applicable
|-
|6
| colspan="2" |Directors may appoint other directors
|201H
|Not applicable
|-
|7
| colspan="2" |Appointment of managing directors
|201J
|Not applicable
|-
|8
| colspan="2" |Alternate directors
|201K
|Not applicable
|-
|9
| colspan="2" |Remuneration of directors
|202A
|Displaced (see note II)
|-
|10
| colspan="2" |Director may resign by giving written notice to company
|203A
|Not applicable
|-
|11
| colspan="2" |Removal by members—proprietary company
|203C
|Not applicable
|-
|12
| colspan="2" |Termination of appointment of managing director
|203F
|Not applicable
|-
|13
| colspan="2" |Terms and conditions of office for secretaries
|204F
|Not applicable
|-
! colspan="5" |'''Inspection of books'''
|-
|14
| colspan="2" |Company or directors may allow member to inspect books
|247D
|Applicable
|-
! colspan="5" |'''Director’s meetings'''
|-
|15
| colspan="2" |Circulating resolutions of companies with more than 1 director
|248A
|Applicable (see note IV)
|-
|16
| colspan="2" |Calling directors’ meetings
|248C
|Applicable (see note IV)
|-
|17
| colspan="2" |Chairing directors’ meetings
|248E
|Applicable (see note IV)
|-
|18
| colspan="2" |Quorum at directors’ meetings
|248F
|Applicable (see note IV)
|-
|19
| colspan="2" |Passing of directors’ resolutions
|248G
|Applicable (see note IV)
|-
! colspan="5" |'''Meetings of members'''
|-
|20
| colspan="2" |Calling of meetings of members by a director
|249C
|Displaced (see note V)
|-
|21
| colspan="2" |Notice to joint members
|249J(2)
|Applicable (see note VI)
|-
|22
| colspan="2" |When notice by post or fax is given
|249J(4)
|Applicable (see note VI)
|-
|22A
| colspan="2" |When notice under paragraph 249J(3)(cb) is given
|249J(5)
|Applicable (see note VI)
|-
|23
| colspan="2" |Notice of adjourned meetings
|249M
|Applicable (see note VI)
|-
|24
| colspan="2" |Quorum
|249T
|Applicable (see note VI)
|-
|25
| colspan="2" |Chairing meetings of members
|249U
|Applicable (see note VI)
|-
|26
| colspan="2" |Business at adjourned meetings
|249W(2)
|Applicable (see note VI)
|-
|27
| colspan="2" |Who can appoint a proxy
 
''[replaceable rule  for proprietary companies only]''
|249X
|Applicable (see note VI)
|-
|28
| colspan="2" |Proxy vote valid even if member dies, revokes appointment etc.
|250C(2)
|Applicable (see note VI)
|-
|29
| colspan="2" |How many votes a member has
|250E
|Applicable (see note VI)
|-
|30
| colspan="2" |Jointly held shares
|250F
|Applicable (see note VI)
|-
|31
| colspan="2" |Objections to right to vote
|250G
|Applicable (see note VI)
|-
|32
| colspan="2" |How voting is carried out
|250J
|Applicable (see note VI)
|-
|33
| colspan="2" |When and how polls must be taken
|250M
|Applicable (see note VI)
|-
! colspan="5" |'''Shares'''
|-
|33A
| colspan="2" |Pre‑emption for existing shareholders on issue of shares
 
in proprietary company
|254D
|Not applicable
|-
|33B
| colspan="2" |Other provisions about paying dividends
|254U
|Displaced (see note VII)
|-
|34
| colspan="2" |Dividend rights for shares in proprietary companies
|254W(2)
|Not applicable
|-
! colspan="5" |'''Transfer of shares'''
|-
|35
| colspan="2" |Transmission of shares on death
|1072A
|Displaced (see note VIII)
|-
|36
| colspan="2" |Transmission of shares on bankruptcy
|1072B
|Displaced (see note VIII)
|-
|37
| colspan="2" |Transmission of shares on mental incapacity
|1072D
|Displaced (see note VIII)
|-
|38
| colspan="2" |Registration of transfers
|1072F
|Displaced (see note VIII)
|-
|39
| colspan="2" |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) [[Constitution of Urabba Parks/Section 1|section&nbsp;1]] (legislative);
 
:(b) [[Constitution of Urabba Parks/Section 61|section&nbsp;61]] (executive);
 
:(c) [[Constitution of Urabba Parks/Section 71|section&nbsp;71]] (judicial).
 
'''Note II:''' The following provisions deal with remuneration of directors:


:(a) [[Constitution of Urabba Parks/Section 48|section&nbsp;48]] (legislative directors);
(5)  Despite any other law, Urabba Parks shall:


:(b) [[Constitution of Urabba Parks/Section 66|section&nbsp;66]] (Ministers);
:(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


:(c) [[Constitution of Urabba Parks/Section 72#s3|subsection&nbsp;72(3)]] (presenters of judicial directors).
:(b)  not have a disqualifying purpose.


'''Note III:''' A director:
(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.


:(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 [[Constitution of Urabba Parks/Section 37|section&nbsp;37]]), and ceases to be a director by virtue of ceasing to be a member (see [[Constitution of Urabba Parks/Section 21#s4|subsection&nbsp;21(4)]]);
== Provision relevant to compliance with Australian law ==
(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:


:(b) who is a judicial officer may resign from office in writing addressed to the Manager‑General (see [[Constitution of Urabba Parks/Section 72#s8|subsection&nbsp;72(8)]]), and ceases to be a director by virtue of ceasing to hold judicial office (see [[Constitution of Urabba Parks/Section 70#s1|subsection&nbsp;70(1)]]).
:(a)  as a criminal offence under an Australian law (even if the offence is a summary offence); or


'''Note IV:''' The Parliament may set the rules of proceeding of:
:(b)  by way of a civil penalty under an Australian law.


:(a) Houses of the Parliament: see [[Constitution of Urabba Parks/Section 50|section&nbsp;50]];


:(b) judicial bodies: see [[Constitution of Urabba Parks/Section 79|section&nbsp;79]].
= Relevant notes from the Explanatory Memorandum =
79. This section&nbsp;sets out the method (and in some cases, the qualifications) for appointment to places within Urabba&nbsp;Parks.
80. Subsection&nbsp;(1) requires directors and alternate directors to hold director places (category&nbsp;D).  This ensures that each director is appointed in respect of a particular branch of government, whether it be as a legislative director, a judicial director or Honorary Director (each of which are explained below).  Subsection&nbsp;(2) has a similar effect for secretaries.


'''Note V:''' Proceedings of members are usually initiated by the Manager‑General in Council, in the case of general elections (see [[Constitution of Urabba Parks/Section 32|section&nbsp;32]]) and referenda (see section&nbsp;128).  The Speaker may issue the writ for the election to fill a casual vacancy in the House of Ordinaries: see [[Constitution of Urabba Parks/Section 33|section&nbsp;33]].
81. Subsection&nbsp;(3) provides that directors may be removed only by a resolution of the relevant members for that director.  If there are no other members, the Enactor (referred to as the enacting component of the legislature) is the relevant member.  A director is taken to be appointed to represent the interests of the relevant members.  This is to protect the rights of members of Urabba&nbsp;Parks over the appointment of directors; for legislative directors the relevant members are the members who elect the director, and in the case of judicial directors the relevant members are – in the case of Directors of the Court of Directors – the presenters (usually the judicial directors themselves).


'''Note VI:''' The Parliament may legislate for the conduct of proceedings of members of Urabba Parks: see [[Constitution of Urabba Parks/Section 51#parb-xviii|subparagraph&nbsp;51(b)(xviii)]].
82. This Constitution either provides or implies that some places in Urabba&nbsp;Parks are succeeded to or presented by a member.  The purpose of having some places appointed in this way entrenches the governance system of Urabba&nbsp;Parks.  Under the Corporations Act 2001, only members, as successors and presenters to places, may bring action against Urabba&nbsp;Parks under that Act in respect of its governance.


'''Note VII:''' The Parliament may legislate for a charity distribution to ordinary members: see [[Constitution of Urabba Parks/Section 51#parb-iii|subparagraph&nbsp;51(b)(iii)]].
83. Under subsection&nbsp;(4), the succession to a place by members may be determined by the eligible members passing a resolution to vest the succession in a share in the class of membership eligible to succeed to the place, unless a different method of succession is agreed to by all the members eligible to succeed.


'''Note VIII:''' Membership is not transferrable or transmissible except as provided under law: see [[Constitution of Urabba Parks/Section 113|section&nbsp;113]].
84. A place is succeeded by members if it automatically passes to the holder of a particular share in a class of membership (or in some cases, the holder’s nominee) that has, under law, the rights to succeed to the place.  If no other share has been chosen under agreement or by a resolution of the members, subsection&nbsp;(4) provides the place vests in the first-numbered membership eligible to succeed to the place, or if membership is not numbered then by the order of which the members became members of the class, and for members becoming members of the class of the same time, then by the order of their name appearing in the register of members.  This provision protects the rights of the members succeeding to the place.


= <span id="EM"></span>Relevant notes from the Explanatory Memorandum =
85. Under subsection&nbsp;(5) a member may, unless otherwise provided under law, present themselves (paragraph&nbsp;(a)), and despite any law, practice or usage to the contrary withdraw the presentation of a person appointed in respect of the membership and the place would become vacant as a result (paragraph&nbsp;(b)).  Subsection&nbsp;(5) reflects the fact that the person appointed upon presentation of the member is the member themselves or somebody who is related or in the employ of the member, and that presentation is used as a means to secure the independence of certain officers from arbitrary removal (such as removal as a director).
76. Subsection&nbsp;(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&nbsp;(2) provides for the invalidity of laws in the case of inconsistency with higher-ranking laws as set out in subsection&nbsp;(3).


77. Subsection&nbsp;(3) creates a hierarchy of law and names the various sources of the law; such as
86. Under subsection&nbsp;(6) all employees must be holders of engagement places (category&nbsp;E) who have agreed to the operation of subsection&nbsp;9(2). This provision provides for the application of the internal legal system to them and effectively allows for the Parliament to limit the number of employees engaged in entities such as associations.
:(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&nbsp;above or falling in the entrenchment&nbsp;(see [[Constitution of Urabba Parks/Schedule 2/Clause 1#EM|note&nbsp;353]] for more information on this table);
:(B) law of entities with legislative rights over Urabba&nbsp;Parks (item&nbsp;1A) – this item&nbsp;provides for the effect of the law of those entities as laws of Urabba&nbsp;Parks;
:(C) provisions contained in enactments of Urabba&nbsp;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&nbsp;above or falling in the entrenchment&nbsp;(item&nbsp;2) – this allows for the entrenchment&nbsp;of certain laws other than this Constitution, such as entrenchable matter falling in [[Constitution of Urabba Parks/Schedule 2/Clause 3#c2|subclause&nbsp;3(2) of Schedule&nbsp;2]] (see [[Constitution of Urabba Parks/Schedule 2/Clause 3#EM|note&nbsp;358]]);
:(D) provisions actually expressed in this Constitution other than provisions falling in a previous item&nbsp;(item&nbsp;3) – this allows for the supremacy of the Constitution over other laws (with the exception of those laws falling above);
:(E) enactments of Urabba&nbsp;Parks other than laws falling in a previous item&nbsp;of this table (item&nbsp;4) – this will represent the overwhelming majority of legislation;
:(F) precedent binding on the judicature of Urabba&nbsp;Parks (item&nbsp;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&nbsp;6); and
:(H) law and rules existing at the establishment of jurisdiction (item&nbsp;7).
78. Subsection&nbsp;(4) also limits the effect of laws that would cause Urabba&nbsp;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&nbsp;(5) limits the objects of Urabba&nbsp;Parks to ‘charitable purposes’ and provides Urabba&nbsp;Parks  shall not have ‘disqualifying purposes’ (terms which under subsection&nbsp;(6) have the meaning given by sections 11 and 12 of the ''Charities Act 2013'').  Furthermore subsection&nbsp;(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&nbsp;Parks’ adherence to ACNC Governance Standards 1 and 3.


87. Under subsection&nbsp;(7), titular places (category&nbsp;T) must be held by a member of the foundation group of which Urabba&nbsp;Parks is a member, or in the case of foundation being held in common among members, by a person removable by those members or by the legislature, or a place created under the Management and succeeded to or appointed upon presentation by an ordinary member.  This is to ensure that the occupiers of those places are members of Urabba&nbsp;Parks, ensuring the ownership of the members on the governance process.




{{Constitution of Urabba Parks|state=expanded}}
[[Category:Constitution of Urabba Parks| ]]


[[Category:Urabbaparcensian constitutional law| ]]
[[Category:Urabbaparcensian constitutional law| ]]
Please note that all contributions to Urabba Parks Pty Ltd may be edited, altered, or removed by other contributors. If you do not want your writing to be edited mercilessly, then do not submit it here.
You are also promising us that you wrote this yourself, or copied it from a public domain or similar free resource (see My wiki:Copyrights for details). Do not submit copyrighted work without permission!
Cancel Editing help (opens in new window)

Template used on this page:

Retrieved from "https://www.urabbaparks.org.au/upgov/index.php/Constitution_of_Urabba_Parks/Section_10"