Corporations Act - Australia

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the company; or

      (ii) a related body corporate; or

      (iii) a body that was a related body corporate of the company when the past services were rendered; and

      (c) the value of the benefit, when added to the value of all other benefits (if any) already given in connection with the person’s retirement from offices or positions in the company and related bodies corporate does not exceed the amount worked out under whichever of subsections (2) and (3) is applicable.

      In applying paragraph (c), disregard any pensions or lump sums that section 200F applies to.

      (2) This subsection applies if the relevant period for the person is less than 1 year. The amount worked out under this subsection is:

      

      where:

      estimated annual base salary is a reasonable estimate of the base salary that the person would have received from the company and related bodies corporate during the relevant period if the relevant period had been 1 year.

      Note: The relevant period for the person is defined in subsection (6).

      (3) This subsection applies in every other case. The amount worked out under this subsection is:

      (a) if the relevant period is 1 year — the base salary that the person received from the company and related bodies corporate during the relevant period; or

      (b) if the relevant period is more than 1 year but less than 2 years — the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

      (i) the relevant period were 2 years; and

      (ii) the person’s annual base salary for the second year were a reasonable estimate of what the person would have received as base salary after the first year of the relevant period had the relevant period been 2 years; or

      (c) if the relevant period is 2 years — the average annual base salary that the person received from the company and related bodies corporate during the relevant period; or

      (d) if the relevant period is more than 2 years but less than 3 years — the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

      (i) the relevant period were 3 years; and

      (ii) the person’s annual base salary for the third year were a reasonable estimate of what the person would have received as base salary after the second year of the relevant period had the relevant period been 3 years; or

      (e) if the relevant period is 3 years or more — the average annual base salary that the person received from the company and related bodies corporate during the last 3 years of the relevant period.

      (4) In determining for the purposes of paragraph (1)(c) the value of a pension or lump sum payment, disregard any part of the pension or lump sum payment that is attributable to:

      (a) a contribution made by the person; or

      (b) a contribution made by a person other than:

      (i) the company; or

      (ii) a body corporate (a relevant body corporate) that is a related body corporate of the company, or that was, when the contribution was made, such a related body corporate; or

      (iii) an associate of the company, or of a relevant body corporate, in respect of:

      (A) the payment of the pension, or the making of the lump sum payment, as the case may be; or

      (B) the making of the contribution.

      (6) In this section:

      payment means a payment by way of pension or lump sum and includes a superannuation, retiring allowance, superannuation gratuity or similar payment.

      relevant period: if a person has held a managerial or executive office in the company or a related body corporate:

      (a) throughout a period; or

      (b) throughout a number of periods;

      the relevant period for that person is that period or the period consisting of those periods.

      200H Benefits required by law

      Subsection 200B(1) does not apply to a benefit given by a person if failure to give the benefit would constitute a contravention of a law in force in Australia or elsewhere (otherwise than because of breach of contract or breach of trust).

      200J Benefits to be held on trust and repaid

      (1) If an entity (the giver) contravenes section 200B by giving a benefit to a person (the recipient), then the amount of the benefit, or the money value of the benefit if it is not a payment:

      (a) is taken to be received by the recipient on trust for the giver; and

      (b) must be immediately repaid by the recipient to the giver.

      (1A) An amount repayable under subsection (1) to the giver:

      (a) is a debt due to the giver; and

      (b) may be recovered by the giver in a court of competent jurisdiction.

      (2) Subsection (1) applies to the whole of the amount of a payment or of the money value of the benefit even though giving the benefit would not have contravened section 200B if that amount or value of the benefit had been less.

      Part 2D.3 — Appointment, remuneration and cessation of appointment of directors

      Division 1 — Appointment of directors

      Subdivision A — General rules

      201A Minimum number of directors

      Proprietary companies

      (1) A proprietary company must have at least 1 director. That director must ordinarily reside in Australia.

      Public companies

      (2) A public company must have at least 3 directors (not counting alternate directors). At least 2 directors must ordinarily reside in Australia.

      201B Who can be a director

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

      (2) A person who is disqualified from managing corporations under Part 2D.6 may only be appointed as director 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.

      201D Consent to act as director

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

      (2) The company must keep the consent.

      (3) An offence based on subsection (1) or (2) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      201E Special rules for the appointment of public company directors

      (1) A resolution passed at a general meeting of a public company appointing or confirming the appointment of 2 or more directors is void unless:

      (a) the meeting has resolved that the appointments or confirmations may be voted on together; and

      (b) no votes were cast against the resolution.

      (2)

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