On 10 February 2022, the Senate passed the Corporations Amendment (Meetings and Documents) Bill 2001 (the Bill). The Bill has amended the Corporations Act 2001 (Cth) (the Act), permanently enacting previously temporary changes that had been introduced to provide companies with the flexibility to use technology to meet their obligations in relation to meetings, notices and documents.
What are the changes?
Amongst other things, the changes allow companies (including not-for-profit and charitable companies limited by guarantee) to use technology or electronic means to:
- Sign documents (i.e. minutes of meetings and resolutions and deeds).
- Hold directors’ and members’ meetings (including hybrid meetings) provided:
- the entity’s constitution provides for it; and
- the individuals entitled to attend had a reasonable opportunity to participate, including to hear and be heard.
- Provide (and receive from members or directors) notices and certain meeting related documents.
Note: members must be notified of their right ‘at least once each year’ to elect to receive a document electronically or in physical form or not to receive documents from a company.
- Record and retain minute books.
What do the changes mean for my company?
We recommend that you:
- review your charity’s governing document to ensure it is consistent with the new provisions;
- consider whether it is appropriate to take advantage of the flexibility to provide documents to members:
- electronically (i.e. notice of meeting, a notice of resolution, proxy forms, minutes); or
- by posting on a website (i.e. an annual report).
- consider how meetings are held (i.e. in person, hybrid or virtual only). Although the changes do not mandate the ‘format’ of the meeting, technology must provide the ‘members as a whole’ a reasonable opportunity to participate. It is important to ensure that technology is selected and used in a way that provides this ‘reasonable opportunity’ to all members. For example, the Act makes it clear that giving members access to the ‘chat’ function but no opportunity to speak will not be sufficient. Companies should also consider whether there is appropriate evidence (such as a record of any questions and the corresponding responses provided during the meeting) that members were given this ‘reasonable opportunity’.
- when accepting electronically signed documents, consider whether your charity has reliable processes in place to identity the person and confirm the person’s intention to sign the document. If not using a software such as Docusign which authenticates signatures, it is good practice to retain an email or separate document that amongst other things:
- identifies the person signing the document;
- indicates the person’s intention in respect of the information recorded; and
- authorises the use of an electronic signature.
- consider the appropriateness of information being recorded electronically in a minute book rather than a physical record.
How we can help?
Moores can review your governing document or assist with any questions that you may have about the changes.
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.