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Corporations Bill 2001

Part 2D.4 Appointment of secretaries


204A   Minimum number of secretaries

Proprietary companies

             (1)  A proprietary company is not required to have a secretary but, if it does have 1 or more secretaries, at least 1 of them must ordinarily reside in Australia.

Public companies

             (2)  A public company must have at least 1 secretary. At least 1 of them must ordinarily reside in Australia.

204B   Who can be a secretary

             (1)  Only an individual who is at least 18 may be appointed as a secretary of a company.

             (2)  A person who is disqualified from managing corporations under Part 2D.6 may only be appointed as a secretary of a company if the appointment is made with permission granted by ASIC under section 206F or leave granted by the Court under section 206G.

204C   Consent to act as secretary

             (1)  A company contravenes this subsection if a person does not give the company a signed consent to act as secretary of the company before being appointed.

             (2)  The company must keep the consent.

204D   How a secretary is appointed

                   A secretary is to be appointed by the directors.

Note 1:       The company must notify ASIC of the appointment within 14 days (see subsection 205B(1)).

Note 2:       Section 188 deals with the responsibilities of secretaries for contraventions by the company.

204E   Effectiveness of acts by secretaries

             (1)  An act done by a secretary is effective even if their appointment, or the continuance of their appointment, is invalid because the company or secretary did not comply with the company’s constitution (if any) or any provision of this Act.

             (2)  Subsection (1) does not deal with the question whether an effective act by a secretary:

                     (a)  binds the company in its dealings with other people; or

                     (b)  makes the company liable to another person.

Note:          The kinds of acts that this section validates are those that are only legally effective if the person doing them is a secretary (for example, signing and sending out a notice of a meeting of directors if the company’s constitution authorises the secretary to do so or signing a document to be lodged with ASIC). Sections 128-130 contain rules about the assumptions people are entitled to make when dealing with a company and its officers.

204F   Terms and conditions of office for secretaries ( replaceable rule—see section 135 )

                   A secretary holds office on the terms and conditions (including as to remuneration) that the directors determine.

204G   Signpost to consequences of disqualification from managing corporations

                   A person ceases to be a secretary of a company if the person becomes disqualified from managing corporations under Part 2D.6 (see subsection 206A(2)) unless ASIC or the Court allows them to manage the company (see sections 206F and 206G).