Proprietary companies are not required to have a company secretary. However, they may choose to have one. In general, if a company has only one company secretary, they must ordinarily reside in Australia: see section 204A(1) of the Corporations Act. If a company intends to appoint more than one company secretary, at least one must ordinarily reside in Australia.
A proposed company secretary should be at least 18 years old. A person who is disqualified from managing corporations may only be appointed as a secretary of a company if the appointment is made with permission granted by ASIC or leave granted by the Court. Otherwise, there are no specific requirements or restrictions about whether the company secretary has to be employed by the company or its affiliates (see section 5.4 (Part 1.5) of the Corporations Act). Also, please note that the same person may be both a director of a company and the company secretary. Under section 127 of the Corporations Act, documents must be executed by either 2 company directors, a director and secretary, or a sole director (only if there is no company secretary). This means that if a proprietary company only has a sole director, and does not intend to appoint a seperate company secretary, this sole director can legally execute documents.
A company secretary is an officer of the company (see section 9 of the Corporations Act) and is subject to various responsibilities under the Corporations Act. These responsibilities include but are not limited to ensuring that the company:
- notifies ASIC about changes to the identities, names and addresses of the company’s directors and company secretaries;
- notifies ASIC about changes to the register of members;
- notifies ASIC about changes to any ultimate holding company; and
- responds, if necessary, to an extract of particulars that it receives and that it responds to any return of particulars that it receives.
See section 188 of the Corporations Act for additional information.
As an officer of the company, company secretaries are also required to comply with the officer duties outlined in sections 180 to 184 of the Corporations Act.
A company secretary’s obligations may continue even after the company has been deregistered (see section 5.4 (Part 1.5) of the Corporations Act).
If you have any questions, please contact us for assistance.