Corporate Governance Checklist July 2009

Transcription

1 Crprate Gvernance Checklist July 2009 Impact Applicable t Cmpanies Limited by Guarantee Crpratins Act 2001 (Cth.) 1 Appintment f Directrs and Secretaries Crpratins Act 2001 (Cth.) 1.1 Minimum number f directrs A public cmpany must have at least 3 directrs (nt including alternate directrs). At least 2 directrs must rdinarily reside in Australia. Sectin 201A Appintment f minimum number f Directrs 1.2 Wh can be a directr Only a persn wh is at least 18 may be appinted as a directr. Fr public cmpanies, a reslutin passed at a general meeting appinting r cnfirming the appintment f 2 r mre directrs is vid unless: the meeting has reslved that the appintments r cnfirmatin may be vted n tgether; and n vtes were cast against the reslutin. Sectins 201B and 201E Prcess appintment f Directrs

2 Crprate Gvernance Page 2 f 28 Impact 1.3 Cnsent t act as directr A cmpany cntravenes this sectin if a persn des nt give the cmpany a signed cnsent t act as a directr f the cmpany bee being appinted. The cmpany must keep the cnsent. Sectin 201D This is a strict liability ffence: 10 penalty units r imprisnment 3 mnths r bth. Cnsent t act Prcess giving cnsent t act 1.4 Minimum number f secretaries A public cmpany must have at least 1 secretary. At least 1 f them must rdinarily reside in Australia. Sectin 204A This is a strict liability ffence: 5 penalty units. Appintment f minimum number f Secretaries 1.5 Wh can be a secretary Only an individual wh is at least 18 may be appinted as a secretary f a cmpany. Sectin 204B Prcess appintment f Secretaries

3 Crprate Gvernance Page 3 f 28 Impact 1.6 Cnsent t act as secretary A cmpany cntravenes this sectin if a persn des nt give the cmpany a signed cnsent t act as a secretary f the cmpany bee being appinted. The cmpany must keep the cnsent. Sectin 204C This is a strict liability ffence: 5 penalty units. Cnsent t act Prcess giving cnsent t act 1.7 Resignatin r retirement f directr r secretary If a directr, secretary r alternate directr retires r resigns, they may give ASIC written ntice f the retirement r resignatin. The ntice must be in the prescribed m. T be effective, a ntice f resignatin must be accmpanied by a cpy f the letter f resignatin given t the cmpany. Sectin 205A Bard s t ntify ASIC

4 Crprate Gvernance Page 4 f 28 Impact 1.8 Ntice f details f directrs and secretaries t ASIC A cmpany must ldge with ASIC a ntice f the persnal details f a directr r secretary within 28 days after they are appinted. The ntice must be in the prescribed m and include the fllwing persnal details: their given and family names; and all f their mer given and family names; and their date and place f birth; and their address. The cmpany must ldge with ASIC ntice f any change in the persnal details f a directr, alternate directr r secretary within 28 days after the change. The ntice must be in the prescribed m. If a persn stps being a directr, alternate directr r secretary f the cmpany, the cmpany must ldge with ASIC ntice f the fact within 28 days. The ntice must be in the prescribed m. Sectin 205B 28 days after appintment This is a strict liability ffence: 10 penalty units r imprisnment 3 mnths r bth. Prescribed m Bard s t ntify ASIC

5 Crprate Gvernance Page 5 f 28 Impact 2 Directrs Duties Crpratins Act 2001 (Cth.) 2.1 Care and diligence A directr r ther fficer f a crpratin must exercise their pwers and discharge their duties with a degree f care and diligence that a reasnable persn wuld exercise if they: were a directr r fficer f a crpratin in the crpratin s circumstances; and ccupied the ffice held by, and had the same respnsibilities within the crpratin as the directr r fficer. There is an exceptin t the abve duty the business judgment rule. This rule states that a directr r ther fficer wh makes a business judgment is taken t have cmplied with the abve requirements if they: make the judgment in gd faith a prper purpse; and d nt have a material persnal interest in the subject matter f the judgment; and inm themselves abut the subject matter f the judgment t the extent they reasnably believe t be apprpriate; and ratinally believe that the judgment is in the best interests f the crpratin. A business judgment is any decisin t take r nt take actin in respect f a matter relevant t the business peratins f the crpratin. Sectin 180(1) Sectin 180(3) Sectin 180(2) This is a civil bligatin and as such civil penalties apply: A Curt may make a declaratin f cntraventin and impse a penalty f up t $200,000 if the cntraventin materially prejudices the interests f the crpratin r its members; r the crpratin s ability t pay its creditrs; r is serius. Bard plicy guidance Bard 2.2 Gd faith A directr r ther fficer must exercise their pwers and discharge their duties: in gd faith in the best interest f the crpratin; and a prper purpse. A persn wh is invlved in a cntraventin f the abve als cntravenes this duty. Sectin 181(1) This is a civil bligatin and as such civil penalties apply see abve. Bard plicy guidance Bard

6 Crprate Gvernance Page 6 f 28 Impact 2.3 In the special case directr f a crpratin that is a whlly-wned subsidiary f a bdy crprate if yu believe that a decisin yu tk was taken in gd faith, des the fllwing apply? (a) the cnstitutin f the subsidiary expressly authrises yu t act in the best interests f the hlding cmpany; and (b) yu acted in gd faith in the best interests f the hlding cmpany; and (c) the subsidiary is nt inslvent at the time yu acted and did nt becme inslvent because f the act. Sectin Use f psitin A directr, secretary, ther fficer r emplyee f a crpratin must nt imprperly use their psitin t: gain an advantage themselves r smene else; r cause detriment t the crpratin. A persn wh is invlved in a cntraventin f the abve als cntravenes this duty. Sectin 182 This is a civil bligatin and as such civil penalties apply see abve. Bard plicy guidance Bard 2.5 Use f inmatin A persn wh btains inmatin because they are, r have been, a directr r ther fficer r emplyee f a crpratin must nt imprperly use the inmatin t: gain an advantage themselves r smene else; r cause detriment t the crpratin. A persn wh is invlved in a cntraventin f the abve als cntravenes this duty. Nte this duty cntinues after the persn stps being an fficer r emplyee f the crpratin. Sectin 183 This is a civil bligatin and as such civil penalties apply see abve. Bard plicy guidance Bard

7 Crprate Gvernance Page 7 f 28 Impact 2.6 Gd faith, use f psitin and use f inmatin criminal ffences A directr r ther fficer f a crpratin cmmits an ffence if they: are reckless; r are intentinally dishnest, and fail t exercise their pwers and discharge their duties: in gd faith in the best interest f the crpratin; r a prper purpse. A directr, ther fficer r emplyee f a crpratin cmmits an ffence if they use their psitin dishnestly: with the intentin f directly r indirectly gaining an advantage themselves, r smene else, r causing detriment t the crpratin; r recklessly as t whether the use may result in themselves r smene else directly r indirectly gaining an advantage, r in causing detriment t the crpratin. A persn wh btains inmatin because they are, r have been, a directr r ther fficer r emplyee f a crpratin cmmits an ffence if they use the inmatin dishnestly: with the intentin f directly r indirectly gaining an advantage themselves, r smene else, r causing detriment t the crpratin; r recklessly as t whether the use may result in themselves r smene else directly r indirectly gaining an advantage, r in causing detriment t the crpratin. Sectin 184 2,000 penalty units r imprisnment 5 years, r bth. Bard plicy guidance Bard

8 Crprate Gvernance Page 8 f 28 Impact 2.7 Respnsibility f secretaries and directrs certain cntraventins A secretary f a cmpany cntravenes the Act if the cmpany cntravenes: the requirement cmpanies t have a registered ffice; r the requirement a registered ffice f a public cmpany t be pen t the public; r the requirement t respnd t extract f particulars; r the requirement t respnd t return f particulars; r the requirements relating t ldgement f ntices with ASIC; r the requirement t give ntice f change f principal place f business; r the requirement t give ntice f change t member register (prprietary cmpanies nly); r the requirement t give ntice f change t share structure (prprietary cmpanies nly); r the requirement t give ntice f issue f shares; r the requirement t ldge financial reprts; r the requirement t give ntice f changes t ultimate hlding cmpany (prprietary cmpanies nly). If the cmpany is a prprietary cmpany and des nt have a secretary, each directr cntravenes the Act if they d nt cmply with the abve. Hwever, a persn des nt cntravene the abve if they shw that they tk all reasnable steps t ensure that the cmpany cmplied with the sectin. Sectin 188 This is a strict liability ffence: 5 penalty units. Bard plicy guidance Bard

9 Crprate Gvernance Page 9 f 28 Impact 2.8 Reliance n inmatin r advice prvided by thers If: a directr relies n inmatin, r prfessinal r expert advice, given r prepared by: an emplyee f the crpratin whm the directr believes n reasnable grunds t be reliable and cmpetent in relatin t the matters cncerned; r a prfessinal adviser r expert in relatin t matters that the directr believes n reasnable grunds t be within the persn's prfessinal r expert cmpetence; r anther directr r fficer in relatin t matters within the directr's r fficer's authrity; r a cmmittee f directrs n which the directr did nt serve in relatin t matters within the cmmittee's authrity; and the reliance was made: in gd faith; and after making an independent assessment f the inmatin r advice, having regard t the directr's knwledge f the crpratin and the cmplexity f the structure and peratins f the crpratin; and the reasnableness f the directr's reliance n the inmatin r advice arises in prceedings brught t determine whether a directr has permed a duty under Part 2D.1 f the Act (cncerning duties and pwers) r an equivalent general law duty; Sectin 189 Bard plicy guidance Bard the directr's reliance n the inmatin r advice is taken t be reasnable unless the cntrary is prved.

10 Crprate Gvernance Page 10 f 28 Impact 2.9 Respnsibility actins f delegate Unless the cmpany s cnstitutin prvides therwise, the directrs may delegate any f their pwers t: a cmmittee f directrs; r a directr; r an emplyee f the cmpany; r any ther persn. If the directrs delegate a pwer, a directr is respnsible the exercise f the pwer by the delegate as if the pwer had been exercised by the directrs themselves. Hwever, a directr is nt respnsible the actins f a delegate if: the directr believed n reasnable grunds at all times that the delegate wuld exercise the pwer in cnmity with the duties impsed n directrs f the cmpany by the Act and the cmpany s cnstitutin; and the directr believed: n reasnable grunds; in gd faith; and after making prper inquiry if the circumstances indicated the need inquiry, that the delegate was reliable and cmpetent in relatin t the pwer delegated. Sectins 190 and 198D Bard plicy guidance Bard 2.10 Material persnalinterests A directr wh has a material persnal interest in a matter that relates t the affairs f the cmpany must give the ther directrs ntice f the interest. The ntice must: give details f the nature and extend f the interest and the relatin f the interest t the affairs f the cmpany; and be given at a directrs meeting as sn as practicable after the directr becmes aware f their interest in the matter. The details must be recrded in the minutes f the meeting. A directr has t give ntice f a material persnal interest unless: Sectin 191 This is a strict liability ffence: 10 penalty units r imprisnment 3 mnths, r bth. Bard plicy guidance Bard Prcess giving ntice f interest

11 Crprate Gvernance Page 11 f 28 Impact the interest: arises because the directr is a member f the cmpany and is held in cmmn with the ther members f the cmpany; r arises in relatin t the directr's remuneratin as a directr f the cmpany; r relates t a cntract the cmpany is prpsing t enter int that is subject t apprval by the members and will nt impse any bligatin n the cmpany if it is nt apprved by the members; arises merely because the directr is a guarantr r has given an indemnity r security all r part f a lan (r prpsed lan) t the cmpany; r arises merely because the directr has a right f subrgatin in relatin t a guarantee r indemnity referred t abve; r relates t a cntract that insures, r wuld insure, the directr against liabilities the directr incurs as an fficer f the cmpany (but nly if the cntract des nt make the cmpany r a related bdy crprate the insurer); r relates t any payment by the cmpany r a related bdy crprate in respect f an indemnity permitted under sectin 199A r any cntract relating t such an indemnity; r is in a cntract, r prpsed cntract, with, r the benefit f, r n behalf f, a related bdy crprate and arises merely because the directr is a directr f the related bdy crprate; r the cmpany is a prprietary cmpany and the ther directrs are aware f the nature and extent f the interest and its relatin t the affairs f the cmpany; r all the fllwing cnditins are satisfied: the directr has already given ntice f the nature and extent f the interest and its relatin t the affairs f the cmpany; if a persn wh was nt a directr f the cmpany at the time when the ntice was given is appinted as a directr f the cmpany the ntice is given t that persn;

12 Crprate Gvernance Page 12 f 28 Impact the nature r extent f the interest has nt materially increased abve that disclsed in the ntice; r the directr has given a standing ntice f the nature and extent f the interest under sectin 192 (see belw) and the ntice is still effective in relatin t the interest Directr may give ther directrs standing ntice abut an interest A directr wh has an interest in a matter may give the ther directrs standing ntice f the nature and extent f the interest. The ntice may be given at any time and whether r nt the matter relates t the affairs f the cmpany at the time the ntice is given. The ntice must: give details f the nature and extent f the interest; and be given: at a directrs meeting (either rally r in writing);r t the ther directrs individually in writing. The directr must ensure that the nature and extent f the interest disclsed in the standing ntice is recrded in the minutes f the meeting at which the standing ntice is given r tabled. The standing ntice takes effect as sn as it is given and ceases t have effect if a persn wh was nt a directr at the time which the ntice was given is appinted as a directr r when the nature r extent f the interest materially increases abve that disclsed in the ntice. Sectin 192 Bard plicy guidance Bard Prcess giving standing ntice

13 Crprate Gvernance Page 13 f 28 Impact 2.12 Restrictins n vting directrs f public cmpanies nly A directr f a public cmpany wh has a material persnal interest in a matter that is being cnsidered at a directrs meeting must nt: be present while the matter is being cnsidered at the meeting; r vte n the matter. Hwever, a directr may be present and vte if directrs wh d nt have a material persnal interest in the matter have passed a reslutin that: identifies the directr, the nature and extent f the directr s interest in the matter and its relatin t the affairs f the cmpany; and states that thse directrs are satisfied that the interest shuld nt disqualify the directr frm vting r being present. The directr may als be present and vte if they are entitled under a declaratin r rder made by ASIC. Sectin 195 This is a strict liability ffence: 5 penalty units. Bard plicy guidance Bard Prcedure participatin f directr with apprval f ther directrs 2.13 Is the cmpany acting as a trustee? If the cmpany has incurred a liability as a trustee, are there sufficient assets t cver that liability [if nt, the directr may be persnally liable] Sectin 197 respnsible 2.14 Has the cmpany exempted r indemnified an auditr r fficer frm liability? (limited exemptins legal csts) Sectin 199A Sectin 199C respnsible 2.15 Has the cmpany agreed t pay insurance premiums liability willful breaches against the cmpany r misusing inmatin? Sectin 199B Sectin 199C respnsible 2.16 Have all terminatin payments t fficers been given n prper authrity? Sectin 200A-J respnsible 2.17 If yu are a directr, have yu given a signed cnsent t be a directr bee appintment? Sectin 201D respnsible

14 Crprate Gvernance Page 14 f 28 Impact 2.18 If yu are n lnger a directr have yu resigned in writing t the cmpany? (and ensured that the resignatin has been filed at ASIC) Sectin 203A Sectin 205A respnsible 2.19 D yu receive mail at the addresses ntified t ASIC? Sectin 205D respnsible 2.20 Directr s duty t prevent inslvent trading A directr has a duty t prevent the cmpany frm trading whilst inslvent. A directr cntravenes this duty if: the cmpany is inslvent at the time, r becmes inslvent by incurring that debt, r by incurring at that time debts including that debt; and at that time, there are reasdnable grunds suspecting that the cmpany is inslvent, r wuld becme inslvent; and a reasnable persn in a like psitin in a cmpany in the cmpany s circumstances wuld be s aware. A persn cmmits an ffence if: a cmpany incurs a debt at a particular time; and at that time, a persn is a directr f the cmpany; and the cmpany is inslvent at that time, r becmes inslvent by incurring that debt, r by incurring at that time debts including that debt; and the persn suspected at the time when the cmpany incurred the debt that the cmpany was inslvent r wuld becme inslvent as a result f incurring that debt r ther debts; and the persn's failure t prevent the cmpany incurring the debt was dishnest. Hwever, it is a defence t a cntraventin f this duty if: at the time when the debt was incurred, the persn had reasnable grunds t expect, and did expect, that the cmpany was slvent and wuld remain slvent even if it incurred that debt and any ther debts that it incurred at that time; r if the persn had reasnable grunds t believe, and did believe: Sectin 588G, 588H, 588J and 588K Fr cmmitting an ffence: 2,000 penalty units, r imprisnment 5 years, r bth. A Curt may als rder cmpensatin bth cntraventins and ffences. Bard plicy guidance Bard

15 Crprate Gvernance Page 15 f 28 Impact that a cmpetent and reliable persn was respnsible prviding t the directr adequate inmatin abut whether the cmpany was slvent; and that the ther persn was fulfilling that respnsibility; and expected, n the basis f inmatin prvided t the directr by the ther persn, that the cmpany was slvent at that time and wuld remain slvent even if it incurred that debt and any ther debts that it incurred at that time; r if the directr, because f illness r sme ther gd reasn, he r she did nt take part at that time in the management f the cmpany; r if the directr tk all reasnable steps t prevent the cmpany frm incurring the debt, taking int cnsideratin any actin the persn tk with a view t appinting an administratr, and when that actin was taken, and the results f that actin. 3 Meetings Crpratins Act 2001 (Cth.) 3.1 AGMs f public cmpanies A public cmpany must hld an annual general meeting (AGM) within 18 mnths after its registratin. A public cmpany must hld an AGM at least nce in each calender year and within 5 mnths after the end f its financial year. Sectin 250N This is a strict liability ffence: 10 penalty units r imprisnment 3 mnths r bth. Bard and Executive Awareness Prcess calling AGMs

16 Crprate Gvernance Page 16 f 28 Impact 3.2 Minutes A cmpany must keep minute bks in which it recrds within 1 mnth: prceedings and reslutins f meetings f the cmpany's members; and prceedings and reslutins f directrs' meetings (including meetings f a cmmittee f directrs); and reslutins passed by members withut a meeting; and reslutins passed by directrs withut a meeting. The cmpany must ensure that minutes f a meeting are signed within a reasnable time after the meeting by the chair f the meeting r the chair f the next meeting. The cmpany must ensure that minutes f the passing f a reslutin withut a meeting are signed by a directr within a reasnable time after the reslutin is passed. A cmpany must keep its minute bks at: its registered ffice; r its principal place f business in this jurisdictin; r anther place in this jurisdictin apprved by ASIC. A cmpany must ensure that the minute bks the meetings f its members and reslutins f members passed withut meetings are pen inspectin by members free f charge. Sectins 251A and 251B This is a strict liability ffence: 10 penalty units r imprisnment 3 mnths r bth. Prcess keeping minutes 4 Related Party Transactins Crpratins Act 2001 (Cth.) 4.1 Need member apprval financial benefit t related party Fr a public cmpany t give a financial benefit t a related party f the public cmpany: it must btain the apprval f the members and give the benefit within 15 mnths after that apprval; r the benefit must fall within ne f the fllwing exceptins: the parties are dealing at arms length; r the benefit is remuneratin t an fficer r emplyee; r the benefit is reimbursement expenses incurred; r Sectins Bard plicy guidance Bard Prcess giving financial benefit t related party

17 Crprate Gvernance Page 17 f 28 Impact the benefit is an indemnity, exemptin r insurance premium (r an agreement t given any f thse things) in respect f a liability incurred as an fficer f the cmpany, and t give the benefit wuld be reasnable in the cirumstances; r the benefit is payment in respect f legal csts; r the benefit is t a directr r his r her spuse and the amunt des nt exceed $2,000; r the benefit is t a member f the cmpany and giving the benefit des nt discriminate unfairly against the ther members f the public cmpany; r the benefit is given under an rder f a curt.

18 Crprate Gvernance Page 18 f 28 Impact Applicable t Incrprated Assciatins Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 7 Rules Of Incrprated Assciatins Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 7.1 Rules f assciatin The rules f an incrprated assciatin ( assciatin ) must make prvisin, whether by the adptin f mdel rules r therwise, the fllwing matters: the qualificatins (if any) membership f the assciatin; the register f members f the assciatin; the entrance fees, subscriptins, and ther amunts (if any) t be paid by members f the assciatin the name, cnstitutin, membership and pwers f the cmmittee f management r ther bdy having the management f the assciatin and: the electin r appintment f members f the cmmittee; the terms f ffice f members f the cmmittee; the grunds n which, r reasns which, the ffice f a member f the cmmittee shall becme vacant; the filling f casual vacancies ccurring n the cmmittee; the qurum and prcedure at meetings f the cmmittee. the qurum and prcedure at general meetings f members f the assciatin and whether members are entitled t vte by prxy at general meetings; the time within which, and manner in which, ntices f general meetings and ntices f mtin are t be given, published r circulated; the surces frm which the funds f the assciatin are t be r may be derived; the manner in which the funds f the assciatin are t be managed and, in particular, the mde f drawing and signing cheques n behalf f the assciatin; the intervals between general meetings f members f the assciatin and the manner f calling general meetings. Sectin 6 and schedule 1 Relevant dcuments means recrds r ther dcuments, hwever cmpiled, recrded r stred, that relate t the incrpratin and management f an assciatin, including membership recrds, accunts, accunting recrds and dcuments relating t transactins, dealings, business r prperty f the assciatin. Rules f the assciatin Rules make prvisin required matters Rules divided int paragraphs which are numbered r alphabeticall y designated

19 Crprate Gvernance Page 19 f 28 Impact the manner f altering the statement f purpses f the assciatin; the manner f altering and rescinding the rules and f making additinal rules f the assciatin; prvisins the custdy and use f the cmmn seal (if any) f the assciatin; the custdy f relevant dcuments and securities f the assciatin; the inspectin by members f the incrprated assciatin f relevant dcuments f the assciatin; the dispsitin f any surplus assets n the winding up r disslutin f the assciatin. the prcedure (if any) the disciplining f members and the mechanism (if any) appearances by members in respect f disciplinary actin taken against them; the grievance prcedures settling disputes under the rules between the assciatin and any f its members r between a member and any ther member; and any ther matter that is prescribed. The rules f an assciatin must be divided int paragraphs which are designated by letters in alphabetical rder r are numbered cnsecutively. 7.2 Grievance prcedure The rules f an assciatin must set ut a grievance prcedure dealing with any dispute under the rules between tw members r between a member and the assciatin. A member may appint any persn t act n behalf f the member in the grievance prcedure. The grievance prcedure must allw natural justice t be applied. Sectin 14B Grievance prcedure in rules f assciatin Grievance prcedure allws natural justice

20 Crprate Gvernance Page 20 f 28 Impact 7.3 Alteratin f rules An assciatin may, by special reslutin, alter its statement f purpses r its rules. Such an alteratin des nt take effect until it is apprved by the Registrar. An applicatin the apprval f an alteratin must: be made by the public fficer; be made in the m apprved by the Registrar; be accmpanied by the prescribed fee; be made within 28 days after the alteratin was passed by special reslutin; give ntice f the special reslutin and set ut particulars f the alteratin; be accmpanied by a declaratin signed by at least 2 members f the cmmittee f the assciatin t the effect that the special reslutin was passed in accrdance with the Act; in the case f an alteratin f the rules, be accmpanied by a cnslidated cpy f the rules f the assciatin, including the alteratin. Sectin 22 Registrar means the registrar f incrprated assciatins Applicatin must be made within 28 days f passing f special reslutin Awareness f prcess making applicatin t alter rules 7.4 Rules t be made available t members An assciatin must make a cpy f its rules available inspectin at any reasnable time by a member at the request f that member. Sectin 22A Prcess making rules available t members n request Nminated persn t deal with a request 7.5 Vesting f prperty Where prperty has vested in an assciatin upn the incrpratin f an assciatin, the assciatin must nt, except as prvided by the Act, deal with the prperty cntrary t the prvisins f any trust affecting the prperty immediately bee the incrpratin f the assciatin. Sectin 8 Register f trust deeds f prperty vested in assciatin Prcess ensuring vested prperty dealt with in accrdance with trust deed

21 Crprate Gvernance Page 21 f 28 Impact 8 Name And Registered Address Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 8.1 assciatin An incrprated assciatin shall have the wrd Incrprated as the last wrd in its name, whether r nt within brackets. Hwever, the descriptin f an assciatin shall nt be deemed inadequate r incrrect by reasn nly f the use f the abbreviatin Inc. Sectin 12 assciatin has Incrprated r Inc as last wrd 8.2 Name t appear n business dcuments Business dcument means any dcument that is issued, signed r endrsed by r n behalf f the assciatin and is: a business letter, statement f accunt, invice r rder gds r services; bill f exchange, prmissry nte, cheque r ther negtiable instrument; a receipt r letter f credit issued by the assciatin; r a dcument f a class prescribed. The name f an assciatin must appear in legible characters: n its cmmn seal (if any); and in all ntices, advertisements and ther fficial publicatins f the assciatin; and in all its business dcuments. The registratin number f an assciatin specified in its certificate f incrpratin must appear in legible characters: in all ntices, advertisements and ther fficial publicatins f the assciatin; and in all its business dcuments. Sectin 12A 5 penalty units Name appears n cmmn seal Name appears in all ntices, advertiseme nts and ther fficial publicatins Name appears in all business dcuments Registratin number appears n all required dcuments 8.3 Change f name An assciatin may by special reslutin and with the apprval f the Registrar, change its name. Where an assciatin has passed a special reslutin the change f its name, the public fficer f the assciatin may make applicatin t the Registrar apprval t the change f name. Sectin 13 and regulatins 5D, 6 and 16 Registrar means the registrar f incrprated assciatins Applicatin must be made within 1 mnth f meeting passing special reslutin

22 Crprate Gvernance Page 22 f 28 Impact An applicatin must be made within ne mnth after the date f the meeting f the assciatin at which the special reslutin was passed. An applicatin must be accmpanied by such verificatin f the applicatin as is prescribed and must be accmpanied by the prescribed fee. An applicatin shall be in the m apprved by the Registrar and cntaining the fllwing particulars: the name f the assciatin; the registratin number f the assciatin; the prpsed new name f the assciatin; a statement made by the public fficer declaring that the special reslutin the change f name was passed at a general meeting f the assciatin; the date f the general meeting f the assciatin; the name and address f the public fficer; the signature f the public fficer. 8.4 Registered address f incrprated assciatin An assciatin must have a registered address which may be the address f the public fficer. An assciatin that changes its registered address must ntify the Registrar in the m apprved by the Registrar n later than 14 days after that change. Sectin 13A Registrar means the registrar f incrprated assciatins Ntify Registrar f change f registered address within 14 days The assciatin and each cmmittee member is guilty f an ffence and is liable t a penalty nt exceeding 5 penalty units. Cmmittee Prcess ntifying Registrar f change f registered address

23 Crprate Gvernance Page 23 f 28 Impact 9 Management Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 9.1 Public fficer Where the ffice f public fficer becmes vacant, the cmmittee must, within 14 days after the vacancy arises, appint a persn t fill the vacancy. A persn is incapable f being appinted as a public fficer unless he r she is at least 18 years f age and is resident in Victria. The public fficer must, within 14 days after his appintment, give ntice in writing in the m apprved by the Registrar t the Registrar f his appintment and f his r her full name and address in Victria, tgether with the prescribed fee (if any). The public fficer must als ntify the Registrar f the fllwing: the name f the assciatin; the registratin number f the incrprated assciatin; the telephne number f the public fficer; the date f appintment f the public fficer; the signature f the public fficer Sectins 25 and 28 Regulatin 5E Registrar means the registrar f incrprated assciatins Fill vacancy within 14 days Ntice t Registrar f appintment Register f ntices t Registrar Prcess appinting a public fficer within 14 days f a vacancy Prcess giving written ntice t Registrar f appintment 9.2 Duties f cmmittee members A member r mer member f the cmmittee f management an assciatin must nt knwingly r recklessly make imprper use f inmatin acquired by virtue f his r her psitin in the assciatin s as t gain, directly r indirectly, any pecuniary benefit r material advantage himself r herself r any ther persn, r s as t cause a detriment t the incrprated assciatin. A member f the cmmittee f management f an assciatin must nt knwingly r recklessly make imprper use f his r her psitin in the assciatin s as t gain, directly r indirectly, any pecuniary benefit r material advantage himself r herself r any ther persn r s as t cause detriment t the assciatin. Sectin 29A 60 penalty units Curt may rder persn t pay a penalty t the assciatin as cmpensatin Cmmittee

24 Crprate Gvernance Page 24 f 28 Impact 9.3 Disclsure f interest A member f the cmmittee wh has any direct r indirect pecuniary interest in a cntract r prpsed cntract with the assciatin: must, as sn as he r she becmes aware f his r her interest, disclse the nature and extent f his r her interest t the cmmittee; and must disclse the nature and extent f his r her interest in the annual statement submitted t the members f the assciatin at the next annual general meeting Hwever, the abve des nt apply if the pecuniary interest exists nly by virtue f the fact: that the cmmittee member is an emplyee f the assciatin; r that the cmmittee member is a member f a class f persns whse benefit the assciatin is established; r that the cmmittee member has a pecuniary interest in cmmn with all r a substantial prprtin f the members f the assciatin. A cmmittee member wh has any direct r indirect pecuniary interest in a cntract r prpsed cntract must nt take part in any decisin f the cmmittee with respect t that cntract, but may take part in any deliberatins. Hwever this des nt apply in relatin t a pecuniary interest: Sectins 29B and 29C 10 penalty units Cmmittee plicy guidance Cmmittee that exists nly by virtue f the fact that the cmmittee member is a member f a class f persns whse benefit the assciatin is established; r that the cmmittee member has in cmmn with all r a substantial prprtin f the members f the assciatin.

25 Crprate Gvernance Page 25 f 28 Impact 10 General Meetings Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 10.1 Special reslutins A special reslutin is passed in accrdance with the Act if: f the entitled members f the assciatin wh vte in persn r (if prxies are allwed) by prxy at the meeting, nt less than three quarters vte in favur f the reslutin; and the additinal requirements f the rules f the assciatin relating t the passing f a special reslutin have been met. A reslutin is nt cnsidered t have been passed by special reslutin unless n less than 21 days ntice has been given in accrdance with the rules t all f the entitled members specifying the intentin t prpse the reslutin as a special reslutin. Sectin 29 Entitled member means a member wh is entitled under the rules f the assciatin t vte. 21 days ntice must be given t members f intentin t prpse special reslutin Register f special reslutins Cmmittee Prcess ntifying members f prpsed special reslutin 10.2 Annual General Meeting An assciatin must, at least nce in each calendar year, cnvene an annual general meeting (AGM) f its members. The secnd subsequent AGM must be held within 5 mnths after the end f the financial year f the assciatin. Sectin 30 and regulatin 5F Financial year in relatin t an assciatin means a perid f 12 mnths r ther perid nt exceeding 18 mnths as the assciatin reslves, cmmencing n the date f incrpratin f the assciatin; and each subsequent perid thereafter. AGM t be held each year within 5 mnths f end f financial year In additin t the penalties listed belw, where an assciatin fails t cmply with this sectin, the assciatin and each member f the cmmittee is guilty f an ffence and liable t a penalty nt exceeding 5 penalty units. Register f statements and certificates Prcess cnvening AGM

26 Crprate Gvernance Page 26 f 28 Impact 11 Offences Of Incrprated Assciatins Assciatins Incrpratin Act 1981 (Vic.) Assciatins Incrpratin Regulatins 1998 (Vic.) 11.1 Offence - Failing t cmply with requirements f inspectr A persn must nt refuse r fail, withut reasnable excuse, t cmply with a requirement f an inspectr t prduce relevant dcuments r t give reasnable assistance t the inspectr. A persn must nt: give inmatin t an inspectr that the persn knws t be false r misleading in a material particular; r prduce a dcument that the persn knws t be false r misleading in a material particular withut indicating the respect in which it is false r misleading and, if practicable, prviding crrect inmatin. A persn must nt, withut reasnable excuse, bstruct r hinder an inspectr exercising functins under the Act. Sectin 37L 60 penalty units 60 penalty units 60 penalty units Cmmittee and staff 11.2 False r misleading statements A persn wh makes r authrises he making f a statement that t his knwledge is false r misleading in a material particular (r mits r authrises the missin f any matter r thing withut which the dcument is t his knwledge misleading in a material respect) in: a dcument required the purpses f the Act r ldged with r submitted t the Registrar; r a declaratin made under the Act r in a dcument submitted t a general meeting f members is guilty f an ffence. A persn wh des the abve withut having taken reasnable steps t ensure that the statement was nt false r misleading r t ensure that the statement did nt mit any matter r thing withut which the dcument wuld be misleading, as the case may be, is guilty f an ffence. Sectin 49 Registrar means the Registrar f Incrprated Assciatins 60 penalty units 60 penalty units Staff and cmmittee

27 Crprate Gvernance Page 27 f 28 Impact 11.3 Incrprated assciatin nt t trade etc. An incrprated assciatin must nt: trade; secure pecuniary prfit its members; r as trustee, trade r secure pecuniary prfit persns wh are members f the incrprated assciatin. A member f an incrprated assciatin wh aids, abets, cunsels r prcures r by act r missin is in any way directly r indirectly knwingly cncerned in r party t the cmmissin f an ffence by the assciatin against the abve shall be deemed t have cmmitted that ffence and is punishable accrdingly. The abve prhibitin des nt apply t an assciatin that: the predminant purpse f which is charitable; and the rules f which cntain prvisins precluding any distributin f its assets in the event f winding up r disslutin, therwise than a charitable purpse (and the assciatin must nt alter such a prvisin withut the cnsent f the Minister if the rules as altered wuld be incnsistent with this paragraph); and the rules f which cntain prvisin authrising trading by the assciatin in accrdance with this sectin f the Act (and the assciatin must nt alter such a prvisin withut the cnsent f the Minister). The abve prhibitin als des nt apply t an assciatin that is declared by Order f the Gvernr in Cuncil t be an assciatin t which the prhibitin against trading des nt apply. Sectin penalty units Cmmittee

28 Crprate Gvernance Page 28 f 28 Impact Schls are Obligated t Cmply with ther Legislatin, Including: Equal Opprtunity Act 1995 (Vic) Occupatinal Health and Safety Act 2004 (Vic) Children's Services and Educatin Legislatin (Anaphylaxis Management) Amendment Act 2008 Incme Tax Assessment Act 1936 and 1997 (Cth) Trade Practices Act 1974 (Cth) Privacy Act 1988 (Cth.) Privacy Amendment (Private Sectr) Act 2000 (Cth.) Fair Trading Act 1999 (Vic) Envirnmental Prtectin Act 1970 (Vic) Whistleblwers Prtectin Act 2001 Superannuatin Legislatin.