ALWS Constitution

Preamble

The origins of the company’s predecessor, Australian Lutheran World Service (ABN 36 660 551 871)

(ALWS), can be traced back to 1947 when the local Lutheran pastor at Albury in New South Wales, Pastor Bruno Muetzelfeldt, commenced a ministry to European migrants and refugees who were being resettled through the Bonegilla Migrant Centre, near Albury. That ministry activity evolved into the establishment by the Lutheran World Federation of a Lutheran World Service Australia office (known as LSW-A), whose work continued settling displaced refugees.

Following unification of the Lutheran Church in Australia 1966, Lutheran World Service Australia’s activities developed internationally with participation in aid and resettlement programs, underpinned by the generosity of the Lutheran faithful in Australia and New Zealand through donations of resources including time and money.

Since becoming the overseas humanitarian aid and development agency of the Church, ALWS worked on projects across the world, including in Asia and Africa, carrying out one of the foundational objects of the Church, namely to minister to human need in the name of Jesus Christ our Lord in the spirit of Christian love and service.

In the interests of continuing and enhancing the impact of this work, the Church establishes the company as a charitable corporate entity which is best equipped to sustain required governance standards and the expectations of government and other aid partners. The company is the successor to ALWS, and will continue the international aid and development and resettlement work of ALWS.

In doing so, the Church wishes to acknowledge the many and varied contributions made over the years to the mission of the Church and ALWS by those who have worked for and with ALWS, or have otherwise contributed to it.

Part 1 – Preliminary

1. Definitions

In this constitution, words and phrases have the meaning set out in this clause 1 and clause 3:

ACNC Act means the Australian Charities and Not-for-profits Commission Act 2012 (Cth);
Church means Lutheran Church of Australia Inc (ABN 36 763 133 867);
company means Australian Lutheran World Service Limited;
Corporations Act means the Corporations Act 2001 (Cth);
elected chairperson has the meaning given to it in clause 25.1;
general meeting means a meeting of members and includes the annual general meeting, under clause 19.1;
GCB means the ‘General Church Board’ of the Church as constituted by Article 8.3 (or such other relevant successor provision) of the constitution of the Church;
registered charity means a charity that is registered under the ACNC Act;
special resolution means a resolution:
1. of which notice has been given under clause 20.5(c); and
2. that has been passed by at least 75% of the votes cast by members present and entitled to vote on the resolution;
surplus assets means any assets of the company that remain after paying all debts and other liabilities of the company, including the costs of winding up; and
Virtual Meeting Technology means any technology (such as video or teleconferencing) that allows participation in a meeting, including by asking questions orally or in writing, without being physically present at the meeting.

2. Reading this constitution with the Corporations Act

2.1 The replaceable rules set out in the Corporations Act do not apply to the company.

2.2 While the company is a registered charity, the ACNC Act and the Corporations Act override any clauses in this constitution which are inconsistent with those Acts.

2.3 If the company is not a registered charity (even if it remains a charity), the Corporations Act overrides any clause in this constitution which is inconsistent with that Act.

2.4 A word or expression that is defined in the Corporations Act, or used in that Act and covering the same subject, has the same meaning as in this constitution.

3. Interpretation

In this constitution:

headings do not affect interpretation;
reference to a person includes a corporation, a firm and any other entity;
singular includes plural and plural includes singular;
words of one gender include any other gender;
the words ‘including’, ‘for example’, or similar expressions mean that there may be more inclusions or examples than those mentioned after that expression; and
reference to an Act includes every amendment, re-enactment, or replacement of that Act and any subordinate legislation made under that Act (such as regulations).

4. Name of the company

The name of the company is Australian Lutheran World Service Limited.

5. Type of company

The company is a not-for-profit public company limited by guarantee which is established to be, and to continue as, a charity.

6. Statement of Confession

6.1 The company accepts without reservation the Holy Scriptures of the Old and New Testaments, as a whole and in all their parts, as the divinely inspired, written and inerrant word of God, and as the only infallible source and norm for all matters of faith, doctrine, and life.

6.2 The company acknowledges and accepts as true expositions of the word of God and as its own confession all the Symbolical Books of the Evangelical Lutheran Church contained in the Book of Concord of 1580, namely:

the three Ecumenical Creeds:
1. the Apostles’ Creed;
2. the Nicene Creed; and
3. the Athanasian Creed;
the Unaltered Augsburg Confession;
the Apology of the Augsburg Confession;
the Smalcald Articles;
the Small Catechism of Luther;
the Large Catechism of Luther; and
the Formula of Concord.

7. Limited liability of members

The liability of members is limited to the amount of the guarantee in clause 8.

8. Guarantee

Each member must contribute an amount not more than $10 (the guarantee) to the property of the company if the company is wound up while the member is a member, or within 12 months after they stop being a member, and this contribution is required to pay for the:

debts and liabilities of the company incurred before the member stopped being a member; or
costs, charges and expenses of the winding up.

Part 2 –Charitable purposes and powers

9. Charitable purposes

9.1 The company succeeds ALWS and serves as the overseas humanitarian aid and development agency of the Church, translating the spirit of Christian love and faith of the Church into effective services with and for those most in need.

9.2 The object of the company is to pursue the following charitable purposes:

to provide life-sustaining care to those who suffer most from poverty and injustice in developing countries, empowering them to create more just and sustainable communities, through emergency relief and long-term development programs;
welcome and bring love to life for those fleeing from or affected by disaster, poverty and oppression, building strength and resilience for the future, including through partnerships with organisations sharing the same purpose;
inspire the Lutheran family of Australia and New Zealand, and the wider community generally, to take action to help people hurt by poverty and injustice around the world, and to equip them to do it effectively;
work alongside local churches and partner organisations in the developing world to strengthen capacities to transform lives and the unjust structures that perpetuate poverty;
build alliances with organisations around the world, jointly mobilising resources to address poverty and crisis, and seek lasting solutions to injustice; and
to do all things as are incidental, convenient or conducive to the attainment of all or any of the above charitable purposes.

10. Powers

Subject to clause 11, the company has the following powers, which may only be used to carry out its object:

the powers of an individual; and
all the powers of a company limited by guarantee under the Corporations Act.

11. Not-for-profit

11.1 The company’s income and assets must be used solely to promote the company’s object.

11.2 The company must not distribute any income or assets directly or indirectly to its members, except as provided in clauses 11.3 and 69.

11.3 Clause 11.1 does not prevent the company from doing the following things, provided they are done in good faith:

paying a member for goods or services they have provided or expenses they have properly incurred at fair and reasonable rates or rates more favourable to the company;
reasonable interest on money lent by a member to the company, or reasonable rent for premises let by a member to the company; or
making a payment to a member in carrying out the company’s object.

12. Amending the constitution

12.1 Subject to clause 12.2, the members may amend this constitution by passing a special resolution.

12.2 The members must not pass a special resolution that amends this constitution if passing it causes the company to no longer be a charity.

Part 3 – Members

13. Membership and register of members

13.1 The members of the company are:

the initial members, being those individual persons who hold office on the GCB upon the company’s formation;
each person who subsequently holds office on the GCB from time to time; and
any other person that the GCB approves to be a member, in accordance with this constitution.

13.2 The company must establish and maintain a register of members. The register of members must be kept by the secretary and must contain:

for each current member:
1. name;
2. address;
3. any alternative address nominated by the member for the service of notices; and
4. date the member was entered on to the register;
for each person who stopped being a member in the last 7 years:
1. name;
2. address;
3. any alternative address nominated by the member for the service of notices; and
4. dates the membership started and ended.

13.3 The company must give current members access to the register of members.

13.4 Information that is accessed from the register of members must only be used in a manner relevant to the interests or rights of members.

14. Eligibility to be a member

14.1 Each person who holds office on the GCB from time to time is eligible to be, and shall be, a member.

14.2 Any other person who:

is first invited to be an applicant for membership by the GCB; and
supports the object of the company, is eligible to apply to be a member of the company under clause 15.

14.3 The GCB may offer or withhold an invitation for a person to make an application for membership in its absolute discretion and need provide no reasons for doing so.

15. Application to become a member

15.1 A person who has first been invited to be an applicant by the GCB under clause 14.2(a) may formally apply to become a member of the company by making a written application to the GCB.

15.2 The application must be accompanied by evidence that the applicant is eligible to be a member under clause 14 and that, if admitted as a member, the applicant agrees to be bound by the company’s constitution, including paying the guarantee under clause 8 if required.

16. GCB approval of membership

16.1 The GCB must consider an application for membership made under clause 15 within a reasonable time after the GCB receives the application.

16.2 The GCB may consult with the directors, but is not bound to follow any advice or recommendation of the directors concerning an application for membership made under clause 15.

16.3 If the GCB approves an application for membership made under clause 15, the GCB must advise the directors and the directors must as soon as reasonably possible procure that the new member is entered on the register of members and communicate to the applicant that their application was approved.

16.4 If the GCB rejects an application for membership made under clause 15, the GCB must advise the directors and the directors must communicate to the applicant as soon as reasonably possible to tell them that their application has been rejected. The directors do not have to give reasons.

17. When a person becomes a member

Other than the initial members:

each person who holds office on the GCB from time to time will become a member when they are appointed or elected to the GCB;
an applicant for membership made under clause 15 whose application has been approved by the GCB will become a member when they are entered on the register of members.

18. When a person stops being a member

A member immediately stops being a member if the member:

being a natural person, dies;
being a natural person, becomes an insolvent under administration;
being a natural person, ceases to hold such office by which their entitlement to be a member arises, including in the case of a member who is a member because they hold office on the GCB, by ceasing to be a member of the GCB;
being a body corporate, is wound up (other than for reconstruction or amalgamation) or otherwise dissolved or deregistered or becomes an externally-administered body corporate;
resigns, by writing to the directors.

Part 4 – Dispute resolution

19. Dispute resolution

19.1 The dispute resolution procedure in this clause applies to disputes under this constitution between a member or director and:

one or more members;
one or more directors; or
the company,

(each a disputant and together, the disputants).

19.2 If a dispute arises in connection with this constitution, a disputant may give the other disputant a notice specifying the dispute. The disputants must try to resolve it between themselves within 14 days after notice is given under this clause 19.2.

19.3 If the disputants do not resolve the dispute under clause 19.2, the disputants must within 10 days:

notify the directors about the dispute in writing;
agree, or request, that a mediator be appointed; and
attempt in good faith to settle the dispute by mediation.

19.4 The mediator must:

be chosen by agreement of the disputants; or
where the disputants do not agree:
1. for disputes between members, a person chosen by the directors; or
2. for other disputes, a person chosen by either the Commissioner of the Australian Charities and Not-for-profits Commission or the president of the law institute or society in the state or territory in which the company has its registered office.

19.5 A mediator chosen by the directors under clause 19.4(b)(1):

must not have a personal interest in the dispute; and
must be independent and not be biased towards or against any disputant.

19.6 When conducting the mediation, the mediator must:

allow each disputant a reasonable chance to be heard;
allow each disputant a reasonable chance to review any written statements;
ensure that the disputants are given natural justice; and
not make a decision that is binding on the disputants, unless the disputants have so agreed in writing.

19.7 The mediation ends if the dispute is not resolved within 30 days after the mediator’s appointment.

19.8 Each disputant must keep confidential:

any information or documents disclosed in the course of the mediation;
any discussions between the disputants in the course of the mediation.

These may be used only to resolve the dispute.

19.9 Unless disclosure is required by law:

each disputant must keep confidential all information about the existence, conduct, status or outcomes of the mediation and the terms of any mediation settlement agreement;
this information and these terms may be published or announced only with the consent of the disputants and in terms agreed by them in writing.

19.10 The parties to the dispute must, in keeping with 1 Corinthians 6, make every effort to avoid action in the civil courts by first seriously seeking to settle any differences between themselves or through the mediation. Neither disputant may commence court proceedings in respect of the dispute until the mediation period ends. This does not affect a disputant’s right to seek injunctive or urgent declaratory relief.

19.11 Each disputant must pay its own costs in respect of the dispute resolution process. The disputants must pay in equal shares the mediator’s costs and the costs of third party reports and enquiries requested by the mediator.

Part 5 – Proceedings of members

20. General meetings called by directors

20.1 The directors may call a general meeting.

20.2 If members with at least 5% of the votes that may be cast at a general meeting make a written request to the company for a general meeting to be held, the directors must:

within 21 days of the members’ request, give all members notice of a general meeting; and
hold the general meeting within two months of the members’ request.

20.3 The percentage of votes that members have (in clause 20.2) is to be worked out as at midnight before the members request the meeting.

20.4 The members who make the request for a general meeting must:

state in the request any resolution to be proposed at the meeting;
sign the request; and
give the request to the company.

20.5 Separate copies of a document setting out the request may be signed by members if the wording of the request is the same in each copy.

21. General meetings called by members

21.1 If the directors do not call the meeting within 21 days of being requested under clause 20.2, 50% or more of the members who made the request may call and arrange to hold a general meeting.

21.2 To call and hold a meeting under clause 21.1, the members must:

as far as possible, follow the procedures for general meetings set out in this constitution;
call the meeting using the list of members on the company’s member register, which the company must provide to the members making the request at no cost; and
hold the general meeting within three months after the request was given to the company.

21.3 The company must pay the members who request the general meeting any reasonable expenses they incur because the directors did not call and hold the meeting.

22. Annual general meeting

22.1 A general meeting, called the annual general meeting, must be held:

within 18 months after registration of the company; and
after the first annual general meeting, at least once in every calendar year and within 5 months after the end of its financial year.

22.2 Even if these items are not set out in the notice of meeting, the business of an annual general meeting may include:

confirmation of the minutes of the last annual general meeting;
a review of the company’s activities, including considering the directors’ report;
a review of the company’s finances, including considering the annual financial report;
any auditor’s report (if any);
the election of directors; and
the appointment and payment of auditors (if any).

22.3 Before or at the annual general meeting, the directors must give information to the members on the company’s activities and finances during the period since the last annual general meeting.

22.4 The chairperson of the annual general meeting must give members as a whole a reasonable opportunity at the meeting to ask questions or make comments about the management of the company.

23. Notice of general meetings

23.1 Notice of a general meeting must be given to:

each member entitled to vote at the meeting
each director; and
the auditor (if any).

23.2 Notice of a general meeting must be provided in writing at least 21 days before the meeting.

23.3 Subject to clause 23.4, notice of a general meeting may be provided less than 21 days before the meeting if all the members entitled to attend and vote at the annual general meeting agree beforehand.

23.4 Notice of a meeting cannot be provided less than 21 days before the meeting if a resolution will be moved to:

remove a director; or
remove an auditor.

23.5 Notice of a general meeting must include:

the place, date and time for the meeting (and if the meeting is to be held in two or more places, the technology that will be used to facilitate this);
the general nature of the meeting’s business;
if applicable, that a special resolution is to be proposed and the words of the proposed resolution;
a statement that members have the right to appoint proxies and that, if a member appoints a proxy:
1. the proxy must be a member of the company;
2. the proxy form must be delivered to the company at its registered address or the address (including an electronic address) specified in the notice of the meeting; and
3. the proxy form must be delivered to the company at least 48 hours before the meeting.

23.6 Non-receipt of notice of a meeting, or failure to give proper notice of a meeting to a person entitled to receive it, does not invalidate anything done at the meeting if:

the failure was accidental;
the person gives notice to the company that the person waives proper notice or agrees to the thing done at the meeting; or
the person attends the meeting and:
1. does not object at the start of the meeting to the holding of the meeting; or
2. if the notice omitted an item of business, does not object to the consideration of the business when it is presented to the meeting.

24. Quorum at general meetings

24.1 For a general meeting to be held a quorum is five members entitled to vote.

24.2 The quorum must be present (in person, by proxy or by representative) for the whole meeting.

24.3 When determining whether a quorum is present, a person may only be counted once (even if that person is a representative or proxy of more than one member).

24.4 No business may be conducted at a general meeting if a quorum is not present.

24.5 If there is no quorum present within 30 minutes after the starting time stated in the notice of general meeting:

if the meeting was called on the request of members or by members, the meeting is dissolved;
any other meeting is adjourned to the date, time and place that the chairperson specifies. If the chairperson does not specify one or more of those things, the meeting is adjourned to:
1. if the date is not specified – the same day in the next week;
2. if the time is not specified – the same time; and (3) if the place is not specified – the same place.

24.6 If no quorum is present at the resumed meeting within 30 minutes after the starting time set for that meeting, the meeting is dissolved.

25. Auditor’s right to attend meetings

25.1 The auditor (if any) is entitled to attend any general meeting and to be heard by the members on any part of the business of the meeting that concerns the auditor in the capacity of auditor.

25.2 The company must give the auditor (if any) any communications relating to the general meeting that a member of the company is entitled to receive.

26. Representatives of members

26.1 If a member is a body corporate, that member may appoint as a representative:

one individual to represent the member at meetings and to sign circular resolutions under clause 33; and
the same individual or another individual for the purpose of being appointed as a director.

26.2 The appointment of a representative by a member must:

be in writing;
include the name of the representative;
be signed on behalf of the member; and
be given to the company or, for representation at a meeting, be given to the chairperson before the meeting starts.

26.3 A representative has all the rights of a member relevant to the purposes of the appointment as a representative.

26.4 The appointment may be standing (ongoing).

27. Using technology to hold meetings

27.1 The company may hold a general meeting at two or more venues using any Virtual Meeting Technology that gives the members as a whole a reasonable opportunity to participate, including to hear and be heard.

27.2 If a general meeting is held by Virtual Meeting Technology, a person is taken to be present in person at the general meeting unless they state to the chairperson that he or she is disconnecting his or her telephone or communication device.

27.3 If the general meeting is held by Virtual Meeting Technology only, then

the place of the meeting is taken to be the registered office of the company, and
the time of the meeting is taken to be the time at the registered office of the company.

27.4 If the general meeting is held at more than one physical venue (whether or not it is also held by Virtual Meeting Technology), then:

the place of the meeting is taken to be the main physical venue of the meeting as set out in the notice of the meeting, and
the time of the meeting is taken to be the time at the main physical venue of the meeting as set out in the notice of the meeting.

28. Chairperson for general meetings

28.1 The chairperson elected by the directors to be the company’s chairperson under clause 40 (elected chairperson) is entitled to chair all general meetings.

28.2 The members present and entitled to vote at a general meeting may choose a director or member to be the chairperson for that meeting if:

there is no elected chairperson, or
the elected chairperson is not present within 30 minutes after the starting time set for the meeting; or
the elected chairperson is present but says they do not wish to act as chairperson of the meeting.

29. Role of the chairperson

29.1 The chairperson is responsible for the conduct of the general meeting, and for this purpose must give members a reasonable opportunity to make comments and ask questions (including to the auditor (if any)).

29.2 The chairperson does not have a casting vote.

30. Adjournment of meetings

30.1 The chairperson may adjourn a general meeting to any day, time, and place.

30.2 If a quorum is present, the chairperson must adjourn a general meeting if a majority of members present direct the chairperson to adjourn it. The chairperson may adjourn the meeting to any day, time, and place.

30.3 If a general meeting is adjourned for one month or more, the members must be given new notice of the resumed meeting.

30.4 Only unfinished business may be dealt with at a meeting resumed after an adjournment.

Part 6 – Members’ resolutions and statements

31. Members’ resolutions and statements

31.1 Members with at least 5% of the votes that may be cast on a resolution may give:

written notice to the company of a resolution they propose to move at a general meeting (members’ resolution); and/or
a written request to the company that the company give all of its members a statement about a proposed resolution or any other matter that may properly be considered at a general meeting (members’ statement).

31.2 A notice of a members’ resolution must set out the wording of the proposed resolution and be signed by the members proposing the resolution.

31.3 A request to distribute a members’ statement must set out the statement to be distributed and be signed by the members making the request.

31.4 Separate copies of a document setting out the notice or request may be signed by members if the wording is the same in each copy.

31.5 The percentage of votes that members have (as described in clause 31.1) is to be worked out as at midnight before the request or notice is given to the company.

31.6 If the company has been given notice of a members’ resolution under clause 31.1(a), the resolution must be considered at the next general meeting held more than two months after the notice is given.

31.7 This clause does not limit any other right that a member has to propose a resolution at a general meeting.

32. Company must give notice of proposed resolution or distribute statement

32.1 If the company has been given a notice or request under clause 31:

in time to send the notice of proposed members’ resolution or a copy of the members’ statement to members with a notice of meeting, it must do so at the company’s cost; or
too late to send the notice of proposed members’ resolution or a copy of the members’ statement to members with a notice of meeting, then the members who proposed the resolution or made the request must pay the expenses reasonably incurred by the company in giving members notice of the proposed members’ resolution or a copy of the members’ statement. However, at a general meeting, the members may pass a resolution that the company will pay these expenses.

32.2 The company does not need to send the notice of proposed members’ resolution or a copy of the members’ statement to members if:

it is more than 1,000 words long;
the directors consider it may be defamatory;
clause 32.1(b) applies, and the members who proposed the resolution or made the request have not paid the company enough money to cover the cost of sending the notice of the proposed members’ resolution or a copy of the members’ statement to members; or
in the case of a proposed members’ resolution, the resolution does not relate to a matter that may be properly considered at a general meeting or is otherwise not a valid resolution able to be put to the members.

33. Circular resolutions of members

33.1 Subject to clause 33.3, the directors may put a resolution to the members to pass a resolution without a general meeting being held (a circular resolution).

33.2 The directors must notify the auditor (if any) as soon as possible that a circular resolution has or will be put to members, and set out the wording of the resolution.

33.3 Circular resolutions cannot be used:

for a resolution to remove an auditor;
for passing a special resolution; or
where the Corporations Act or this constitution requires a meeting to be held.

33.4 A circular resolution is passed if all the members entitled to vote on the resolution sign or agree to the circular resolution, in the manner set out in clause 33.5 or clause 33.6.

33.5 Members may sign:

a single document setting out the circular resolution and containing a statement that they agree to the resolution; or
separate copies of that document, as long as the wording is the same in each copy.

33.6 The company may send a circular resolution by email to members and members may agree by sending a reply email to that effect, including the text of the resolution in their reply.

34. How many votes a member has

Each member has one vote.

35. Challenge to member’s right to vote

35.1 A member or the chairperson may only challenge a person’s right to vote at a general meeting at that meeting.

35.2 If a challenge is made under clause 35.1, the chairperson must decide whether or not the person may vote. The chairperson’s decision is final.

36. How voting is carried out

36.1 Unless a poll is properly requested, a resolution put to the vote at a general meeting must be decided on a show of hands or another method chosen by the chairperson that is fair and reasonable in the circumstances.

36.2 Before a vote is taken, the chairperson must state whether any proxy votes have been received and, if so, how the proxy votes will be cast.

36.3 On a show of hands, the chairperson’s decision is conclusive evidence of the result of the vote.

36.4 The chairperson and the meeting minutes do not need to state the number or proportion of the votes recorded in favour or against on a show of hands.

Part 7 – Voting at general meetings

37. Appointment of proxy

37.1 A member may appoint a proxy to attend and vote at a general meeting on their behalf.

37.2 A proxy must be a member. A member who is a proxy has one vote in their capacity as a member and one vote for each proxy they hold.

37.3 A proxy appointed to attend and vote for a member has the same rights as the member to:

speak at the meeting; and
vote on a show of hands (but only to the extent allowed by the appointment).

37.4 An appointment of proxy (proxy form) must be signed by the member appointing the proxy and must contain:

the member’s name and address;
the company’s name;
the proxy’s name or the name of the office held by the proxy; and
the meeting(s) at which the appointment may be used.

37.5 A proxy appointment may be standing (ongoing).

37.6 Proxy forms must be received by the company at the address stated in the notice under clause 23.5(d) or at the company’s registered address at least 48 hours before a meeting.

37.7 A proxy does not have the authority to speak and vote for a member at a meeting while the member is at the meeting.

37.8 Unless the company receives written notice before the start or resumption of a general meeting at which a proxy votes, a vote cast by the proxy is valid even if, before the proxy votes, the appointing member:

being a natural person, dies;
being a natural person, is mentally incapacitated;
being a body corporate, is deregistered or becomes an externally-administered body corporate;
revokes the proxy’s appointment; or
revokes the authority of a representative or agent who appointed the proxy.

37.9 A proxy appointment may specify the way the proxy must vote on a particular resolution. A proxy may vote only as directed.

Part 8 – Directors

38. Number of directors

The company must have at least five and no more than seven directors.

39. Appointment of directors

39.1 The initial directors are the people who have consented to act as directors and who are named as proposed directors in the application for registration of the company.

39.2 The members may elect a director by a resolution passed in a general meeting.

39.3 A person is eligible for election or appointment as a director of the company if they:

posses skills, qualifications or experience the members consider desirable having regard to any skills matrix that may be maintained by the directors from time to time;
are nominated by two members entitled to vote;
give the company their signed consent to act as a director of the company; and
are not ineligible to be a director under the Corporations Act or the ACNC Act.

39.4 The directors may appoint a person as a director to fill a casual vacancy or as an additional director if that person:

meets the eligibility criteria in clause 39.3;
gives the company their signed consent to act as a director of the company; and
is not ineligible to be a director under the Corporations Act or the ACNC Act.

39.5 If the number of directors is reduced to fewer than five or is less than the number required for a quorum, the continuing directors may act for the purpose of increasing the number of directors to five through the operation of clause 39.3 or calling a general meeting, but for no other purpose.

39.6 The board of directors shall consist of the following:

one ordained pastor currently serving in the Church;
having regard to clause 39.3(a), at least one member with knowledge and experience in the aid and development sector; and
having regard to clause 39.3(a), two to four members reflecting a diverse range of backgrounds and competencies to enable to the company’s object to be fulfilled.

39.7 All directors must uphold the ethos and values of the Church, with a majority of directors being Lutherans and the balance shall be practising members of another recognised denomination of the Christian faith.

40. Election of chairperson

40.1 The directors must elect a director as the company’s elected chairperson.

40.2 The directors should have regard to the chairperson being a voting member of a congregation of the Church.

41. Term of office

41.1 Unless the members otherwise determine, there shall be no set term of office for directors.

41.2 Without creating a binding obligation, a director should not generally hold office for a continuous period of more than nine years.

42. When a director stops being a director

A director stops being a director if they:

give written notice of resignation as a director to the company;
die;
become mentally incapable and the director’s estate or property has had a personal representative or trustee appointed to administer it;
are removed as a director by a special resolution of the members;
are absent for three consecutive directors’ meetings without the consent of the directors; or
become ineligible to be a director of the company under the Corporations Act or the ACNC Act.

Part 9 – Powers of directors

43. Powers of directors

43.1 The directors are responsible for managing and directing the activities of the company to achieve the company’s object.

43.2 The directors may use all the powers of the company except for powers that, under the Corporations Act or this constitution, may only be used by members.

43.3 The directors must decide on the responsible financial management of the company including:

any suitable written delegations of power under clause 44; and
how money will be managed, such as how electronic transfers, negotiable instruments or cheques must be authorised and signed or otherwise approved.

43.4 The directors cannot remove a director or auditor. Directors and auditors may only be removed by a members’ resolution at a general meeting.

44. Delegation of director’s powers

44.1 The directors may delegate any of their powers and functions to a committee, a director, an employee of the company (such as a chief executive officer) or any other person, as they consider appropriate.

44.2 The directors may revoke or vary that delegation.

44.3 The delegation must be recorded in the company’s minute book.

45. Payments to directors

45.1 The company must not pay fees to a director for acting as a director.

45.2 The company may:

pay a director for work they do for the company, other than as a director, if the amount is no more than a reasonable fee for the work done; or
reimburse a director for expenses properly incurred by the director in connection with the affairs of the company.

45.3 Any payment made under clause 45.2 must be approved by the directors.

45.4 The company may pay premiums for insurance indemnifying directors, as allowed for by law (including the Corporations Act) and this constitution.

46. Execution of documents

The company may execute a document without using a common seal if the document is signed by:

two directors of the company; or
a director and the secretary.

Part 10 – Duties of directors

47. Duties of directors

The directors must comply with their duties as directors under legislation and common law, and with the duties described in governance standard 5 of the regulations made under the ACNC Act which are:

to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable individual would exercise if they were a director of the company;
to act in good faith in the best interests of the company and to further the object of the company;
not to misuse their position as a director;
not to misuse information they gain in their role as a director;
to disclose any perceived or actual material conflicts of interest in the manner set out in clause 48;
to ensure that the financial affairs of the company are managed responsibly; and
not to allow the company to operate while it is insolvent.

48. Conflicts of interest

48.1 A director must disclose the nature and extent of any actual or perceived material conflict of interest in a matter that is being considered at a meeting of directors (or that is proposed in a circular resolution):

to the other directors; or
if all of the directors have the same conflict of interest, to the members at the next general meeting, or at an earlier time if reasonable to do so.

48.2 The disclosure of a conflict of interest by a director must be recorded in the minutes of the meeting.

48.3 Each director who has a material personal interest in a matter that is being considered at a meeting of directors (or that is proposed in a circular resolution) must not, except as provided under clauses 48.4:

be present at the meeting while the matter is being discussed; or
vote on the matter.

48.4 A director may still be present and vote if:

their interest arises because they are a member of the company, and the other members have the same interest;
their interest relates to an insurance contract that insures, or would insure, the director against liabilities that the director incurs as a director of the company (see clause 66);
their interest relates to a payment by the company under clause 65 (indemnity), or any contract relating to an indemnity that is allowed under the Corporations Act;
the Australian Securities and Investments Commission (ASIC) makes an order allowing the director to vote on the matter; or
the directors who do not have a material personal interest in the matter pass a resolution that:
1. identifies the director, the nature and extent of the director’s interest in the matter and how it relates to the affairs of the company; and
2. says that those directors are satisfied that the interest should not stop the director from voting or being present.

Part 11 – Directors’ meetings

49. When the directors meet

The directors may decide how often, where and when they meet, save that the directors must face-to-face at least two times per year.

50. Calling director’s meetings

50.1 A director may call a directors’ meeting by giving reasonable notice to all of the other directors.

50.2 A director may give notice in writing or by any other means of communication that has previously been agreed to by all of the directors.

51. Chairperson for directors’ meetings

51.1 The elected chairperson is entitled to chair directors’ meetings.

51.2 The directors at a directors’ meeting may choose a director to be the chairperson for that meeting if the elected chairperson is:

not present within 30 minutes after the starting time set for the meeting; or
present but does not want to act as chairperson of the meeting.

52. Quorum at director’s meetings

52.1 Unless the directors determine otherwise, the quorum for a directors’ meeting is a majority (more than 50%) of directors.

52.2 A quorum must be present for the whole directors’ meeting.

53. Using technology to hold directors’ meetings

53.1 The directors may hold their meetings by using any Virtual Meeting Technology that is agreed to by all of the directors.

53.2 The directors’ agreement may be a standing (ongoing) one.

53.3 A director may only withdraw their consent within a reasonable period before the meeting.

54. Passing directors’ resolutions

A directors’ resolution must be passed by a majority of the votes cast by directors present and entitled to vote on the resolution.

55. Circular resolutions of directors

55.1 The directors may pass a circular resolution without a directors’ meeting being held.

55.2 A circular resolution is passed if all the directors entitled to vote on the resolution sign or otherwise agree to the resolution in the manner set out in clause 55.3 or clause 55.4.

55.3 Each director may sign:

a single document setting out the resolution and containing a statement that they agree to the resolution; or
separate copies of that document, as long as the wording of the resolution is the same in each copy.

55.4 The company may send a circular resolution by email to the directors and the directors may agree to the resolution by sending a reply email to that effect, including the text of the resolution in their reply.

55.5 A circular resolution is passed when the last director signs or otherwise agrees to the resolution in the manner set out in clause 55.3 or clause 55.4.

Part 12 – Secretary

56. Appointment and role of secretary

56.1 The company must have at least one secretary, who may also be a director.

56.2 A secretary must be appointed by the directors (after giving the company their signed consent to act as secretary of the company) and may be removed by the directors.

56.3 The directors must decide the terms and conditions under which the secretary is appointed, including any remuneration.

56.4 The role of the secretary includes:

maintaining a register of the company’s members; and
maintaining the minutes and other records of general meetings (including notices of meetings), directors’ meetings and circular resolutions.

Part 13 – Minutes and records

57. Minutes and records

57.1 The company must, within one month, make and keep the following records:

minutes of proceedings and resolutions of general meetings;
minutes of circular resolutions of members;
a copy of a notice of each general meeting; and
a copy of a members’ statement distributed to members under clause 32.

57.2 The company must, within one month, make and keep the following records:

minutes of proceedings and resolutions of directors’ meetings (including meetings of any committees); and
minutes of circular resolutions of directors.

57.3 To allow members to inspect the company’s records:

the company must give a member access to the records set out in clause 57.1; and
the directors may authorise a member to inspect other records of the company, including records referred to in clause 57.2 and clause 58.1.

57.4 The directors must ensure that minutes of a general meeting or a directors’ meeting are signed within a reasonable time after the meeting by:

the chairperson of the meeting; or
the chairperson of the next meeting.

57.5 The directors must ensure that minutes of the passing of a circular resolution (of members or directors) are signed by a director within a reasonable time after the resolution is passed.

58. Financial and related records

58.1 The company must make and keep written financial records that:

(a) correctly record and explain its transactions and financial position and performance; and

(b) enable true and fair financial statements to be prepared and to be audited.

58.2 The company must also keep written records that correctly record its operations.

58.3 The company must retain its records for at least seven years.

58.4 The directors must take reasonable steps to ensure that the company’s records are kept safe.

Part 14 – By-laws

59. By-laws

59.1 The directors may pass a resolution to make by-laws to give effect to this constitution provided that any by-laws:

must not be inconsistent with this constitution;
are first approved by resolution of the members.

59.2 Members and directors must comply with by-laws as if they were part of this constitution.

Part 15 – Notice

60. What is notice

60.1 Anything written to or from the company under any clause in this constitution is written notice and is subject to clauses 61 to 63, unless specified otherwise.

60.2 Clauses 61 to 63 do not apply to a notice of proxy under clause 37.6.

61. Notice to the company

Written notice or any communication under this constitution may be given to the company, the directors or the secretary by:

delivering it to the company’s registered office;
posting it to the company’s registered office or to another address chosen by the company for notice to be provided;

sending it to an email address or other electronic address notified by the company to the members as the company’s email address or other electronic address; or
sending it to the fax number notified by the company to the members as the company’s fax number.

62. Notice to members

62.1 Written notice or any communication under this constitution may be given to a member:

in person;
by posting it to, or leaving it at the address of the member in the register of members or an alternative address (if any) nominated by the member for service of notices;
sending it to the email or other electronic address nominated by the member as an alternative address for service of notices (if any); or
sending it to the fax number nominated by the member as an alternative address for service of notices (if any).

62.2 If the company does not have an address for the member, the company is not required to give notice in person.

63. When notice is taken to be given

A notice:

delivered in person, or left at a the recipient’s address, is taken to be given on the day it is delivered
sent by post, is taken to be given on the third day after it is posted with the correct payment of postage costs;
sent by email, fax or other electronic method, is taken to be given on the business day after it is sent.

Part 16 – Financial year

64. Company’s financial year

The company’s financial year is from 1 July to 30 June, unless the directors pass a resolution to change the financial year.

Part 17 – Indemnity, insurance and access

65. Indemnity

65.1 The company indemnifies each officer of the company out of the assets of the company, to the relevant extent, against all losses and liabilities (including costs, expenses and charges) incurred by that person as an officer of the company.

65.2 In this clause, ‘officer’ means a director or secretary and includes a director or secretary after they have ceased to hold that office.

65.3 In this clause, ‘to the relevant extent’ means:

to the extent that the company is not precluded by law (including the Corporations Act) from doing so; and
for the amount that the officer is not otherwise entitled to be indemnified and is not actually indemnified by another person (including an insurer under an insurance policy).

65.4 The indemnity is a continuing obligation and is enforceable by an officer even though that person is no longer an officer of the company.

66. Insurance

To the extent permitted by law (including the Corporations Act), and if the directors consider it appropriate, the company may pay or agree to pay a premium for a contract insuring a person who is or has been an officer of the company against any liability incurred by the person as an officer of the company.

67. Directors’ access to documents

67.1 A director has a right of access to the financial records of the company at all reasonable times.

67.2 If the directors agree, the company must give a director or former director access to:

certain documents, including documents provided for or available to the directors, and
any other documents referred to in those documents.

Part 18 – Winding up

68. Surplus assets not to be distributed to members

If the company is wound up, any surplus assets must not be distributed to a member or a former member of the company, unless that member or former member is a charity described in clause 69.1.

69. Distribution of surplus assets

69.1 Subject to the Corporations Act and any other applicable Act, and any court order, any surplus assets that remain after the company is wound up must be distributed to one or more charities:

to which income tax-deductible gifts can be made;
with charitable purpose(s) similar to, or inclusive of, the purposes of the company in clause 9.2; and
which also prohibit the distribution of any surplus assets to its members to at least the same extent as the company.

69.2 The decision as to the charity or charities to be given the surplus assets must be made by a special resolution of members at or before the time of winding up. If the members do not make this decision, the company may apply to the Supreme Court of South Australia to make this decision.

Part 20 – Transitional provisions

70. Transitional provisions

70.1 The registration of the company proceeds from the Church’s desire to transfer the assets and undertaking of Australian Lutheran World Service (ABN 36 660 551 871) (ALWS), an unincorporated body and agency of the Church, to a company limited by guarantee registered under the Corporations Act to continue its charitable purposes and carry out its objects.

70.2 The transfer of ALWS’s assets and undertakings to the company is given effect by a transfer deed between the Church and the board of ALWS on the one hand, and the company on the other hand, pursuant to which ALWS’s assets and undertaking become the assets and undertaking of the company, with the intent that the company is the successor entity of ALWS.

70.3 Without limiting the matters described in clauses 70.1 and 70.2, the company declares that any appointment made, motion passed, agreement entered into or any other thing done under the constitution of ALWS if in force at the time of the transfer of ALWS’s assets and undertaking to the company, shall continue in force as far as practicable and shall continue to have the same status, operation and effect as if made under this constitution.

70.4 Those persons holding office as the directors of ALWS upon the adoption of this constitution shall, subject to their consenting to act, be the directors and they shall continue to hold office until the conclusion of the term for which they were appointed as directors of ALWS and are eligible for reappointment in accordance with this constitution. Time served by a director as a director of ALWS before the adoption of this constitution shall continue to be counted as time served for the purposes of calculating the director’s tenure in clause 41.

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