Corporations Act 2001

CHAPTER 2D - OFFICERS AND EMPLOYEES  

PART 2D.4 - APPOINTMENT OF SECRETARIES  

Note: This Part does not apply to a CCIV: see section 1224E .

SECTION 204A   MINIMUM NUMBER OF SECRETARIES  

204A(1)   Proprietary companies.  

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.

204A(2)   Public companies.  

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

204A(3)   Strict liability offences.  

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 .

SECTION 204B   WHO CAN BE A SECRETARY  

204B(1)    
Only an individual who is at least 18 may be appointed as a secretary of a company.

204B(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 206GAB or leave granted by the Court under section 206G .

SECTION 204C   CONSENT TO ACT AS SECRETARY  

204C(1)   [ Need for signed consent]  

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.

204C(2)   [ Consent to be retained]  

The company must keep the consent.

204C(3)   [ Strict liability offence]  

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 .

SECTION 204D  

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.

SECTION 204E   EFFECTIVENESS OF ACTS BY SECRETARIES  

204E(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.

204E(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.


SECTION 204F  

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.

SECTION 204G  

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 206GAB and 206G ).