Photo credit: Raw Pixel, Unsplash
First, do you even need to have a company secretary?
Your private 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 (per section 204A of the Corporations Act).
So who can be a company secretary? This is covered in section 204B of the Corporations Act.
And only a person who is at least 18 may be appointed as a secretary of a company.
Also, a person who is disqualified from managing corporations the Corporations Act 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 is granted by the Court under section 206G of the Corporations Act.
Now, you need to have a person’s signed consent before you appoint them to be a secretary.
Also, you need to keep that consent somewhere safe.
And, if you don’t do this, you are in breach of the Corporations Act.
Directors appoint a secretary.
And the company must notify ASIC of the appointment within 28 days.
Even if you get the appointment wrong, say you did not comply with an existing constitution when you appointed a secretary, any of their actions are still valid.
And the types of actions we are talking about could be signing and sending out a notice of meeting of directors if the constitution authorises the secretary to do this or signing a document to be lodged with ASIC.
In fact, the secretary’s actions not only bind the company in its dealings with other people but also make the company liable to other people.
Now, directors can set terms and conditions of employment for secretaries (section 204F of the Corporations Act). And it’s worth noting that section 204F a replaceable rule.
Also, replaceable rules are not mandatory. You are able to have a different rule in a constitution (if you have one).
If someone is disqualified from managing corporations under the Corporations Act, then this also means that they won’t be able to act as a secretary.
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