The role of a company secretary has changed over time from an administrative role to a role that is relied upon to provide corporate governance support to the directors as well as managing the company's affairs.
The Corporations Act 2001 (Cth) (the Act), the company's constitution, the Australian Securities Exchange (ASX) Listing Rules, board and committee charters, the company secretary's employment agreement, and other relevant legislation and regulations set out the obligations, role and responsibilities of a company secretary.
The company secretary is an "officer" for the purposes of the Act and as a result, any provision imposing a duty or liability on an officer may impose a duty or liability on the company secretary. In addition, the company secretary owes obligations of confidentiality and good faith to the company.
A proprietary company is not required to have a secretary, but if it does have 1 or more secretaries they must be a natural person, be at least 18 years old and at least 1 (if more than 1) must ordinarily reside in Australia. A public company must have a company secretary. ASIC must be notified of the appointment or resignation of the company secretary within 28 days.
Appointment of company secretary is by a resolution of the directors and subject to the company's constitution and the written consent to act of the company secretary. The company secretary holds office on the terms and conditions (including remuneration) that the directors determine.
The responsibilities of a company secretary are wide-ranging and will depend to some extent on the activities which a company undertakes.
Some of the main duties of a company secretary include:
Legal duties and obligations of a company secretary under the Act:
- To exercise their powers and discharge their duties with care and diligence and in good faith and for a proper purpose
- Not to improperly use their position to gain an advantage for themselves or someone else, or to cause detriment to the company; or to improperly use information obtained by virtue of the position
- It is a criminal offence for a company secretary to act recklessly or to be intentionally dishonest or to fail to exercise their powers and discharge their duties in good faith in the best interest of the company or for a proper purpose.
Other common obligations of a company secretary
- Maintain company registers and records and comply with retention requirements for documents and records
- Attend to timely preparation and lodgement of statutory filings & ASIC lodgements as required by the Act
- Facilitate members' and directors' meetings to ensure that correct notice is given and that the meetings are held in accordance with the company's constitution and the Act
- Distributing board and committee papers to directors in a timely manner prior to the meeting
- Preparing minutes of meeting and circulating to the chair for approval
- Preparing and distributing actions arising out of board and/or committee meeting to relevant parties for completion
- Ensure compliance with the 'continuous disclosure' requirements of the Act and the ASX Listing Rules (where applicable)
- Facilitating the induction and ongoing professional development of directors
- Monitoring that board and committee policies, charters and procedures are followed
- Assist the chairman and directors in the conduct of meetings and their governance obligations and responsibilities
- Shareholder relations – including maintaining the share register and shareholder inquires and dividends
- Ensure adherence with the company's constitution, the Act and the ASX Listing Rules (if applicable).
