This Charter is to be read in conjunction with the Rules of the Minda Association (the "Rules”) and where there is any inconsistency, the Rules will prevail.
The primary purpose of the Charter is to define the operation of the Board, its roles and responsibilities and identify the appropriate separation of the role of the Board from that of management.
The Board aims to achieve the following objectives with this Charter:
- make the roles and responsibilities of the Board clear and easily understood by stakeholders;
- define the operation of the Board and its relationship with management;
- provide all Directors and stakeholders with a clear statement of the manner in which the Board will conduct itself and the organisation’s expectations of the Board.
The primary source of the Boards authority is the Rules of the Minda Association.
Under the Incorporated Associations Act, the Board is accountable to its members and other stakeholders.
The Board’s Responsibilities
The Board of Minda is responsible for overseeing the sound and prudent management, governance and strategic direction of Minda’s business operations.
It is the role of the Board to make informed decisions in the best interest of the Association members, to set the strategy for Minda and agree the goals to implement that strategy, and to review and measure the performance of adopted strategies against defined measures.
The Board reviews and approves significant policies and frameworks and satisfies itself that an effective system of compliance, risk management and internal control is established and maintained.
The specific tasks undertaken by the Board to discharge its general responsibilities are:
- Test, review, amend, endorse, and communicate the strategy proposed by management, and ensure it is regularly reviewed.
- Set and review the long term goals of the organisation.
- Monitor management’s implementation of the strategy.
- Approve large investments and major financial transactions.
Monitoring Organisational Performance
- Approve budgets
- Monitor business performance
- Ensure there is accurate financial reporting
- Support or challenge the assumptions of management
- Ensure the organisation complies with all aspects of the law.
- Monitor the controls framework to ensure major risks are identified and managed.
- Ensure that corporate governance principles and policies are established and maintained.
Chief Executive Officer and Senior Management
- Appoint the Chief Executive Officer and monitor his/her performance.
- Ensure appropriate remuneration of and systems in place for monitoring performance of management team.
- Approve professional development opportunities for Chief Executive Officer and senior managers.
The Board’s key objective is to ensure that it continues to meet its role and responsibilities as outlined in the Board Charter.
Board Composition and Structure
Pursuant to the Rules, the Minda Board shall consist of not less than six and not more than ten members (Directors), of which the majority are Association-elected, comprising:
- a least five but no more than six persons, who are not members of staff, elected by the Financial Members of the Association at an Annual General Meeting. Of the Elected Directors, not less than three and not more than four shall be Family members;
- at least one and not more than four persons, who are not members of staff and have experience in the field of intellectual disability and/or relevant directorial skills, nominated and appointed by the Board (Appointed Directors). Of the nominated Appointed Directors, any of these persons may be Family Members, provided always that the maximum number of Family Members sitting on the Board (as either an Elected Director or an Appointed Director) shall not in any event exceed four.
Formal qualifications are not required for members of the Minda Board. However, the Board will seek to establish a team with a skill, experience and qualification mix, and personal qualities which will perform well.
No Director will be a member of the senior management or have any commercial dealings with the entity.
The President of the Board will be independent of management.
All Board and committee members will be required to make an annual statement of their interests which may cause a conflict with Minda. Where a Director becomes aware of a conflict of interest, that Director must formally declare the conflict and participate in discussions and decisions about that matter only with the express approval of the Board.
All Directors hold office for a term of three years (unless they resign or are removed beforehand). Directors may hold office for a maximum of three consecutive terms or nine years. If a Director has held office for three consecutive terms, that Director must wait for a term to expire before they may stand for re-election or re-nomination again.
A Director appointed to fill a casual vacancy must stand for election at the next Annual General Meeting. The election procedures for Directors are contained in the Rules.
Board, Committee and Director Evaluation
The Board, its Committees and Directors will conduct a review of their performance against their objectives at least every two years but preferably annually, and the performance of individual Directors and Committee members against their responsibilities as contained in their position descriptions. The method of conducting a Board / Committee review is for the Board / Committee to determine.
The review processes should include:
- a review of the Board Charter and Committee Terms of Reference;
- review of the skills mix and composition of the Board and its Committees;
- programs for inducting directors and developing their skills and involvement; and
- whether Board and Committee meetings are efficient, including the scheduling and timing of meetings, division of time between its various responsibilities, minutes, quality of papers and agendas.
Directors are encouraged to undertake professional development to enhance their understanding of governance matters and to assist in their performance on the Board and its Committees.
The review of the Board’s and Committees’ performances is completed at least bi-annually and the results of the Board’s and each Committee’s review is reported to the annual strategic planning meeting. Recommendations for action arising from the Board’s and Committee’s Performance Reviews are documented in the Board’s and Committees minutes and action item registers.
Directors – Annual Reviews
Annual Director reviews are included as part of the annual Board and Committee review process.
The Board undertakes an independent Board and Committee performance assessment every three years. Issues reviewed include:
- Board and Committee processes;
- Board and Committee cohesion and decision making;
- division of responsibility – governance and management;
- setting of strategic direction and reporting;
- Governance policies;
- Committee practices, delegations, processes, decisions and performance management;
- Chair practices;
- Director performance; and
- stakeholder engagement.
The independent review also includes a review of the Board Chair.
The Chair of the Nominations, Remuneration and Governance Committee is responsible for ensuring that the Board Chair undertakes the reviews as and when they fall due, which is before the earlier of the date of requirement for a Director to be nominated for re-appointment or the Director’s appointment anniversary.
The staggering of appointments and retirements should be carefully planned so as to ensure a smooth continuation of skills and capabilities on the Board and Committees at all times.
The Board may establish such committees as it sees fit to assist it to carry out the Board’s functions. Each Committee will have its own terms of reference which will be approved by the Board, and will have no delegated power other than that specifically provided to it by the Board. The performance of Committees against their objectives will be assessed.
Delegations by the Board to the Chief Executive Officer
The Board delegates to the Chief Executive Officer responsibility for implementing the strategic direction and for managing the day to day operations of Minda, as well as the delegations contained in the Delegations of Authority document. Those delegations are renewed annually through a formal approval process undertaken by the Board. That process details the delegations to the Chief Executive Officer and his/her staff, and also the protocols surrounding the exercise of those delegations. The Board does not generally delegate any authority to individual Directors, but may do so by expressly creating a written delegation should circumstances require it.
The Board recognises that it cannot abrogate its responsibility for functions delegated to management.
The Board has specifically reserved to itself authority for the following matters:
- Acquiring, selling or otherwise disposing of property of Minda.
- Acquiring or selling patent rights, rights in registered trademarks, licences, or other intellectual property rights of Minda.
- Founding, dissolving or relocating branch offices or other offices, plants and facilities.
- Starting new business activities, terminating existing business activities or initiating major changes to the field of Minda’s business activities.
- Granting securities of any type.
- Granting loans to Minda officers or employees and taking over guarantees for Minda officers and employees.
- Entering into agreements for recurring, voluntary or additional social benefits, and superannuation agreements.
- Determining the appointment, termination, prolongation of employment for the Board nominated members, Ordinary Directors appointed by the Association at an AGM, or amendment to conditions of employment of Directors in accordance with the Rules of Minda.
- Granting or revoking a power of attorney or limited authority to sign and/or act on behalf of Minda (other than related to client matters).
The following should be reported to the Board or appropriate Board committee for advice/noting:
- Debts in excess of 90 days.
- Any potential legal action against the Association.
- Relevant insurance matters.
- Financial claims against the Association.
- All important business activities and matters with potential material risks.
- Approval to use the power of attorney and each document executed under the power of attorney. This schedule must be made available for internal audit.
Election of President
The Board elects a President of the Association from its elected members. The President is also the President of the Board. In the absence of the President at a meeting of the Board, the Directors present will elect one of their number to act as Chairman of that meeting.
The President will hold office for a period of three years (unless they resign or are removed beforehand).
When electing a President, Directors shall take into account the following:
- job description for the President;
- the leadership abilities of the President;
- particular issues facing the Board for the term of the appointment.
Duties and Rights of Directors
The key objectives for individual directors include:
- meeting the required skill levels within the required time periods;
- attending meetings of the Board and appointed Committees in accordance with Minda’s policy on meeting attendance;
- complying with the Minda Code of Conduct; and
- contributing to Board and Committee deliberations and the overall direction of Minda.
Individual Directors will be assessed against these objectives on an annual basis.
Directors are expected to have qualities of integrity and loyalty, and the courage to ask tough questions. Each member is bound by all charters, policies and codes of conduct of Minda and the Board. In particular, Directors are expected to:
- Demonstrate professional, legal and ethical behaviour at all times and in particular, to always act in a manner which will enhance Minda’s reputation.
- Be familiar with the rules about conflicts of interest.
- Participate in the induction process for Directors, any professional development provided for Directors and the annual evaluation of the Board’s performance.
- Act at all times impartially and with complete discretion.
- Be familiar with Minda’s vision and strategy, and able to communicate them to stakeholders.
- Participate at Board and committee meetings in a professional and appropriate manner.
Directors owe a fiduciary duty to Minda to act honestly, in good faith and in the best interests of the organisation. The duty is owed to the organisation as a whole, not to individual groups within the organisation. This duty exists under the common law, and for companies, also under the Corporations Act.
Directors must act in good faith in the best interests of Minda and for a proper purpose. When considering whether a Director has breached this duty, a court will consider matters such as avoiding actual or potential conflicts between duties to the organisation and personal interests.
A Director must not improperly use his/her position to gain an advantage for themselves or someone else or cause detriment to a company.
A Director must not promote his/her personal interests by making or trying to make a gain where there is a conflict or potential conflict between his/her personal interests and the interests of the organisation.
A Director must not use information gained by virtue of being a Director to gain an advantage for themselves or someone else or cause detriment to the Association.
A Director will have discharged his/her duty of care and diligence if she/he has:
- Made the judgement in good faith and for a proper purpose.
- Does not have a material personal interest in the matter.
- Has informed themselves to a reasonable extent about the matter.
- Rationally believes the judgement to be in the best interests of the organisation.
It is no longer an acceptable defence to claim that a Director relied on the advice of management in making a decision.
Directors have the following rights to assist them discharge their duties and obligations:
- The right to delegate (this is also specifically provided for in the Rules), however, the Director must have reasonable grounds to believe the delegate would act properly and appropriately, and is competent to act.
- Access to documents and information – a Director can inspect and take copies of documents if acting for a proper purpose while on the Board.
- Access to professional advice if appropriate and necessary.
- Right to Directors and Officers insurance.
Indemnity in respect of a liability incurred while acting as a Director of the organisation, except where a Director:
- fails to act honestly in a matter concerning the organisation; or
- intentionally or recklessly fails to exercise, in relation to a matter affecting the organisation, the degree of care and diligence that the Director is required to exercise.
Access to Legal Advice
Individual Directors have the right in connection with their duties and responsibilities as directors, to seek independent professional advice at Minda’s expense. With the exception of expenses for legal advice in relation to director’s rights and duties, the engagement of an outside adviser is subject to the prior approval of the Chairman and this will not be withheld unreasonably.
The Board will generally meet on a monthly basis on the third Thursday of each month.
Board papers will be distributed to members at five business days prior to the meeting, and will contain an agenda, financial report for the preceding month, minutes from the last meeting, report on the use of the seal and power of attorney, and significant business items appropriate for consideration of the Board.
If there is an issue that a Director wishes to have listed on the agenda, they should contact the Chair.
The President will conduct the meeting in accordance with the requirements of the Rules (for example, in relation to voting), and general principles applying to meetings.
The President will determine the degree of formality required at each meeting while maintaining the decorum of meetings and will ensure that Board discussions are conducted to achieve effective decision making and actions. The President will ensure that:
- Directors are provided with an opportunity to express their views, and if a member is not able to be present at a meeting but has provided the President or Chief Executive Officer with a statement as to his/her views on a particular matter, then the President will ensure those views are taken into account.
- Directors have been provided with appropriate information in order to be able to make a decision on an issue before the Board.
- Decisions are properly understood and well recorded.
- The proceedings of the meeting are properly recorded in minutes and that Directors have the opportunity to comment on those minutes in draft form before they are accepted as final.
- The Board may pass a resolution without a Board meeting if all members entitled to vote sign a statement approving the resolution as set out.
- Separate copies of a document may be signed in counterpart by Directors if the wording of the resolution is identical in each copy.
- The resolution is passed when the last Director signs.
Resolution by Email
- Directors may pass a circular resolution by email provided that each member approves the identical resolution.
- Signatures are not required on a circular resolution by email.
- The resolution is passed when the last response is received.
Board Meetings – Teleconference
The Board can conduct meetings using any means of technology by which each Director participating can hear and be heard.Such a Board meeting will be treated as held at the location at which the most Directors are present or, if Directors are located equally, at the President’s location.
Attendance at Meetings
Directors are expected to attend all meetings of the Board and their appointed Committees in order to properly assist and contribute to the governance of Minda.
In accordance with Rule 7.1 (f), a Director shall be ineligible to retain their seat on the Board if they are absent from three consecutive Board meetings without leave of the Board.
The CEO’s office is responsible for Board papers and minutes, director professional development training records, maintenance of the Register of Interests and Duties, reporting and notifications to the regulator/s, and maintenance of company records.
The Nominations, Remuneration and Governance Committee is responsible for ensuring compliance with this policy, its ongoing review and Board, Committee and Director review processes.
The protection provided to Directors is outlined in the Directors Access and Indemnity agreement.
The purpose of this agreement is multi-fold but summarily:
- it protects Directors should the organisation fail to take out or continue to hold requisite Directors and Officers insurance (D&O insurance) cover in the future;
- it provides access to books and records in excess of that provided by the Associations Incorporation Act 1985 (SA);
- it confirms the indemnification of Directors not withstanding any changes to the organisations constitution in later years to reduce the current levels of protection.
All executed agreements are held in the Office of the Chief Executive Officer. All agreements are identical as between Directors there is no variation of rights. No agreement can be modified or altered without the written consent of all parties who are party to the original.
It is at Directors discretion as to whether they enter into the agreement with the organisation but in either case, the Directors protections under current instruments are not impacted.
As a general rule, a Director has two areas of protection:
- The right to information.
- The ability to insure against specific risks of being a Director.
The right to information:
- Directors wanting information should approach the Chief Executive Officer to request required data.
- A complete set of Board papers will be held by the Chief Executive Officer on behalf of the members for a period of at least seven years.
- Directors are entitled to access the papers for the period when they were a Director, on request.
D&O insurance coverage will be provided by the Association to each Director. This D&O insurance covers each Director and Officer for claims made against them during the Policy period with respect to their duties to Minda.
The policy indemnifies each Director against:
- all liability against which Directors are indemnified under the Rules;
- monetary penalties for which a Director is not indemnified under the Rules;
- legal costs incurred by a Director in respect of legal claims or inquiries concerning Minda or anything done by the Director as a Director of Minda.
The D&O insurance does not cover any liability or expense incurred by a Director as a result of:
- The Director’s own dishonesty.
- A wilful breach of a Director’s duty.
- Improper use of a Director’s position to gain advantage or to cause detriment to Minda.
- Improper use of information obtained as a Director of Minda to gain advantage or cause detriment to Minda.
Minda is not entitled to insure Directors against failure to act honestly and properly in connection with their duties in the course of Minda business.