Company secretaries play an essential part in an Australian company. The main responsibility of a company secretary is to ensure that the company complies with all the relevant regulatory requirements in respect of operating a company. Failure to do so can lead to your company receiving fines from ASIC.
This guide provides an overview of the roles and responsibilities of a company secretary in Australia.
Who can and cannot be a company secretary in Australia?
A company secretary in Australia can be a natural person (that is, not a company), at least 18 years old and who ordinarily resides in Australia.
A company secretary must also not be a person disqualified from managing companies. This is unless they have been given leave by the court or approval by ASIC. A person can be both a director and a company secretary.
Appointing the company secretary
Directors appoint the company secretary and set out terms and conditions for the role.
The person must give signed consent to act as the secretary, and the company must notify the ASIC within 28 days of the appointment. The company must keep the consent.
Roles & responsibilities of a company secretary
Company secretaries are responsible for the following:
- Confirm meetings are arranged and held
- Ensure that the board follows policies and procedures
- Ensure that the business discussed at meetings is recorded in the minutes
- Ensure that the company’s financial reports are maintained
- Facilitate the professional development of existing directors
- Prepare and send reports to the board
- Update, implement and maintain the company’s compliance policies and procedures
New responsibilities related to the performance of the board are:
- Advise the board on standards of corporate governance
- Be involved in risk management and corporate responsibility matters
- Ensure the board has the information needed to make informed decisions
- Manage director induction and maintenance of a director manual
- Organise board performance reviews
- Organise the Directors’ & Officers’ (D&O) insurance
- Policy formulation for the board
Duties of a company secretary
According to section 9 of the Corporations Act, company secretaries fall under the definition of an officer of a corporation and have the same duties and obligations as a director, which are:
- To exercise powers and discharge their duties with care and diligence (section 180).
- To exercise their powers and discharge their duties in good faith and for a proper purpose (section 181).
- Must not improperly use their position to gain an advantage for themselves or someone else or to cause detriment to the company (section 182).
- Must not improperly use the information to gain an advantage for themselves or someone else or to cause detriment to the company (section 183).
- It is a criminal offence if the company secretary is either reckless or dishonest and fails to exercise their powers and discharge their duties in good faith in the corporation’s best interest or for a proper purpose (section 184).
Liabilities of a company secretary
Section 188 lists the provisions which the company secretary will be held liable for if violated by the company:
- A company must have a registered office (section 142).
- The registered office of a public company must be open to the public each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm or at least three hours chosen by the company between 9 am and 5 pm each business day (section 145).
- A company must lodge with the ASIC notice of a change in the address of its principal place of business not later than 28 days after the change is made (section 146).
- A proprietary company must notify the ASIC of changes made to the member register (section 178A).
- A proprietary company must notify the ASIC of changes made to the share structure (section 178C).
- A company must lodge with the ASIC notice of personal details of the directors or secretaries 28 days after they are appointed (section 205B).
- A company must notify of any issue of shares within 28 days (section 254X).
- A company must lodge financial reports with the ASIC (section 319 (1)).
- To respond to an extract of particulars (section 346C) and to return of particulars (section 348D).
- Proprietary companies must notify the ASIC of changes to the ultimate holding company (section 349A)
A company secretary’s role has been increasingly important over the years, especially for fast-growing companies undergoing many internal changes. Even though it is not required for some companies, it is a good idea to appoint a company secretary.
Their primary duties and responsibilities are to support the board and ensure the company complies with all the relevant regulatory requirements in respect of operating a company.
If you have any questions about a company secretary or would like to appoint one for your company, get in touch with us. Our company secretarial & governance services bring total visibility across all your compliance activities: Acclime Australia expertly manages every aspect of your compliance, ensuring that nothing is missed and that you have real-time, cloud-based access to your information.