06/02/2025
The global pandemic provided impetus for regulators to ensure companies and associations could continue to operate without needing decision-makers to be all in the same room. As a result of various amendments to the Corporations Act 2001 (Cth) in 2021 and 2022, companies and associations were permitted to:
- Sign and execute company documents electronically;
- Distribute meeting papers and other meeting related documents electronically; and
- Hold hybrid meetings.
These amendments were made permanent in the Corporations Amendment (Meetings and Documents) Act 2022 (the 2022 Act), however were subject to the promise of review.
In 2024 the Government commenced the review of the flexibility arrangements through the appointment of an independent panel (the Panel). The Panel reported to the Government on 14 August 2024 in the Statutory Review of the Meetings and Documents Amendments, Final Report August 2024 (the Panel Report). On 4 February 2025 the Government released the Government response to the Statutory Review of the Meetings and Documents Amendments, 4 February 2025’ (the Government response).
In short there is support from the Panel and from the Government for the continuation of flexible meeting arrangements for most unlisted companies and associations.
So what does mean for your company or association? Our team of commercial and corporate governance experts can assist you with ensuring your Board makes the most of the flexibility arrangements whilst ensuring you maintain good corporate governance, and compliance.
It is essential that boards ensure:
- members have reasonable opportunity to participate in meetings regardless of the format. A reasonable opportunity includes providing members with opportunity to ask questions, to vote, to comment on matters and be run transparently;
- minutes of board and general meetings are taken and signed. The taking of minutes for meetings is a legal requirement for most corporations and incorporated associations (see 251A (1) Corporations Act 2001 and section 54 Associations Incorporation Regulations 2023 (ACT) (ACT Regulation)); and
- The governing documents, be they constitution or rules, do not impede your board’s ability to operate effectively and for member meetings to be held in the most efficient manner.
Contact us for a range of corporate governance offerings including constitution reviews, board governance charter development, audit of board procedures and minutes or a workshop on improving board effectiveness.
Outline of current flexible meeting arrangements
General meetings
The current legislative position regarding general meetings, as being that:
- Proprietary companies, unlisted public companies, and companies limited by guarantee are permitted to hold a meeting:
- at one or more physical venues;
- at one or more physical locations and using virtual meeting technology; or
- using virtual meeting technology only if they are required or permitted by their constitution expressly. (ss249R Corporations Act)
The Government response recommends that these entities should be permitted to determine the appropriate meeting format and that for these companies there should be no statutory requirement of constitutional permission before a wholly virtual general meeting may be held.
- Companies registered as bodies corporate under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) may hold physical, hybrid or wholly online meetings.
The Government response recommends that this be retained without the need for constitutional permission for wholly virtual general meetings.
Distribution of meeting materials
The 2022 Act provides companies with flexibility to choose whether to send meeting documents electronically or by hard copy. This can be in a physical form, sent via electronic means, giving a person details to access the documents electronically, or, for documents such as annual report, making them available on a website (s.110D Corporations Act)
Types of documents covered include notices of meetings, notices and records of resolutions, notices of statements or matters to be considered at a meeting and minute books.
However, members can also elect how they would like to receive documents whether this be in relation to all documents, classes of document or a specific document. The sender must take reasonable steps to comply with a members’ election.
The Panel’s recommendation is that the laws concerning electronic distribution of meeting-related material be maintained, and the Government response indicates agreement to this recommendation.
Technology neutral signing and execution of documents
Flexibility in execution of documents was a major change following the COVID related laws. The 2022 Act permanently allowed companies to execute documents and to sign certain corporate documents, including meeting-related documents in a flexible manner.
In 2023, further legislation expanded the scope of changes to allow electronic signing of documents to all documents under the Corporations Act.
Minutes are critically important to Boards. Section 251A(b) of the Corporations Act requires companies to ensure minutes of a meeting are signed within a reasonable time after the meeting by either the chair of the meeting or the chair of the following meeting. Similar provisions exist for incorporated associations in some states (e.g. rule 65 of the Model Rules, ACT Regulation 2023 (ACT)).
When properly signed, minutes are evidence of the proceeding, resolution or declaration to which they relate, unless the contrary is proved (s 251A (6) Corporations Act).
The current legislative position is that company documents including meeting-related documents such as Board meeting minutes can be signed electronically or using wet-ink. Section 110A of the Corporations Act provides that:
(a) a document will be validly signed if it identifies the person signing the document, indicates their intention to be bound by the document and the method of signing is appropriate in all the circumstances;
(b) a person may sign or execute the document in one or more capacities by signing the document only once if that person’s signature block states each capacity in which they are signing; and
(c) a document does not need to be signed on paper, parchment or vellum or meet common law delivery requirements to be validly executed.
Thie means that a document such as meeting minutes can be signed electronically if the signatory has authorised the affixation of their electronic signature. Proof of authorisation can be an email from the signatory or a file note of a telephone call with the signatory.
The Panel recommended that the current laws concerning electronic signing and execution of documents be maintained. The Government response agrees with this recommendation.
For advice on how to ensure your company or association effectively conducts meetings contact our Corporate Governance team at Griffin Legal.