CHAPTER 2D
-
OFFICERS AND EMPLOYEES
PART 2D.4
-
APPOINTMENT OF SECRETARIES
Note: This Part does not apply to a CCIV: see section
1224E
.
History
Pt 2D.4 amended by No 8 of 2022, s 3, Sch 2[71] (effective 1 July 2022).
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
.
History
S 204A(3) inserted by No 117 of 2001, s 3, Sch 1
[
46] (effective 15 December 2001).
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
.
History
S 204B(2) amended by No 44 of 2019, s 3, Sch 1[23] (effective 6 April 2019).
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
.
History
S 204C(3) inserted by No 117 of 2001, s 3, Sch 1
[
47] (effective 15 December 2001).
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.
[
CCH Note:
S 204D will be amended by No 69 of 2020, s 3, Sch 1[522], by substituting
"
the Registrar
"
for
"
ASIC
"
in note 1, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 204D (Note 1) amended by No 103 of 2004, s 3, Sch 11
[
7].
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.
[
CCH Note:
S 204E(2) will be amended by No 69 of 2020, s 3, Sch 1[523], by inserting
"
or the Registrar
"
after
"
ASIC
"
in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
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
).
History
S 204G amended by No 44 of 2019, s 3, Sch 1[24] (effective 6 April 2019).