Corporations Act - Australia

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liability.

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

      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.

      (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.

      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 28 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).

      Part 2D.5 — Public information about directors and secretaries

      205A Director, secretary or alternate director may notify ASIC of resignation or retirement

      (1) If a director, secretary or alternate director retires or resigns, they may give ASIC written notice of the retirement or resignation. The notice must be in the prescribed form.

      (2) To be effective, a notice of resignation must be accompanied by a copy of the letter of resignation given to the company.

      Note: If a director, secretary or alternative director of a company gives a written notice in accordance with this section, the company is not required to lodge a notice with ASIC under subsection 205B(5) (see subsection 205B(6)).

      205B Notice of name and address of directors and secretaries to ASIC

      New directors or secretaries

      (1) A company must lodge with ASIC a notice of the personal details of a director or secretary within 28 days after they are appointed. The notice must be in the prescribed form.

      Note: 1: If a person becomes a director under subsection 120(1) there is no appointment and no notice is required under this subsection.

      Note: 2: If a person who was appointed as an alternate director becomes a director under the terms of their appointment as an alternate director, there is no appointment as a director and no notice is required under this subsection.

      New alternate directors

      (2) A company must lodge with ASIC a notice of:

      (a) the personal details of a person who is appointed as an alternate director; and

      (b) the terms of their appointment (including terms about when the alternate director is to act as a director);

      within 28 days after their appointment as an alternate director. The notice must be in the prescribed form.

      Personal details

      (3) The personal details of a director, alternate director, or secretary are:

      (a) their given and family names; and

      (b) all of their former given and family names; and

      (c) their date and place of birth; and

      (d) their address.

      Note: For address see section 205D.

      Changes in details

      (4) The company must lodge with ASIC notice of any change in the personal details of a director, alternate director or secretary within 28 days after the change. The notice must be in the prescribed form.

      Notice required if person stops being a director or secretary

      (5) If a person stops being a director, alternate director or secretary of the company, the company must lodge with ASIC notice of the fact within 28 days. The notice must be in the prescribed form.

      (6) Subsection (5) does not apply if:

      (a) the person was an alternate director who stopped being a director in accordance with the terms of their appointment as an alternate director; or

      (b) the person gives ASIC a written notice of the person’s retirement or resignation as a director, alternate director or secretary of the company in accordance with section 205A.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code.

      (7) An offence based on subsection (1), (2), (4) or (5) is an offence of strict liability.

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

      205C Director and secretary must give information to company

      (1) A director, alternate director or secretary must give the company any information the company needs to comply with subsection 205B(1) or (2) within 7 days after their initial appointment unless they have previously given the information to the company.

      (2) A director, alternate director or secretary must give the company any information the company needs to comply with subsection 205B(4) within 7 days after any change in their personal details.

      (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.

      205D Address for officers

      Address is normally residential address

      (1)

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