Corporations Act 2001

CHAPTER 2G - MEETINGS  

PART 2G.4 - MEETINGS OF MEMBERS OF REGISTERED SCHEMES  

Note: Section 1228A applies a modified version of this Part in relation to a CCIV. Section 1228B applies a modified version of this Part in relation to a sub-fund of a CCIV.

Division 1 - Who may call meetings of members  

SECTION 252A  

252A   CALLING OF MEETINGS OF MEMBERS BY RESPONSIBLE ENTITY  
The responsible entity of a registered scheme may call a meeting of the scheme's members.

SECTION 252B   CALLING OF MEETINGS OF MEMBERS BY RESPONSIBLE ENTITY WHEN REQUESTED BY MEMBERS  

252B(1)   [ Members' request for meeting]  

The responsible entity of a registered scheme must call and arrange to hold a meeting of the scheme's members to consider and vote on a proposed special or extraordinary resolution on the request of:

(a) members with at least 5% of the votes that may be cast on the resolution; or

(b) at least 100 members who are entitled to vote on the resolution.

252B(1A)   [ Regulations may prescribe different number]  

The regulations may prescribe a different number of members for the purposes of the application of paragraph (1)(b) to:

(a) a particular scheme; or

(b) a particular class of scheme.

Without limiting this, the regulations may specify the number as a percentage of the total number of members of the scheme.

252B(2)   [ Form of request]  

The request must:

(a) be in writing; and

(b) state any resolution to be proposed at the meeting; and

(c) be signed by the members proposing to move the resolution.

252B(3)   [ Statement about resolution]  

The request may be accompanied by a statement about the proposed resolution provided by the members making the request.

252B(4)   [ Separate copies]  

Separate copies of a document setting out the request and statement (if any) may be used for signing by members if the wording of the request and statement (if any) is identical in each copy.

252B(5)   [ Percentage of votes]  

The percentage of the votes that members have is to be worked out as at the midnight before the request is given to the responsible entity.

252B(6)   [ When meeting must be held]  

The responsible entity must call the meeting within 21 days after the request is given to it. The meeting is to be held not later than 2 months after the request is given to the responsible entity.

252B(7)   [ Copy of proposed resolution and statement]  

The responsible entity must give to each of the members a copy of the proposed resolution and statement (if any) at the same time, or as soon as practicable afterwards, as it gives notice of the meeting. The responsible entity must distribute the copies in the same way in which it gives notice of the meeting.

252B(8)   [ More than 1,000 words or defamatory]  

The responsible entity does not have to distribute a copy of the resolution or statement if either is more than 1,000 words long or defamatory.

252B(9)   [ Expenses]  

The responsible entity is responsible for the expenses of calling and holding the meeting and making the distribution. The responsible entity may meet those expenses from the scheme's assets.

SECTION 252C   FAILURE OF RESPONSIBLE ENTITY TO CALL MEETING OF THE SCHEME'S MEMBERS  

252C(1)   [ Members may call meeting]  

Members with more than 50% of the votes carried by interests held by the members who make a request under section 252B may call and arrange to hold a meeting of the scheme's members and distribute the statement (if any) if the responsible entity does not do so within 21 days after the request is given to the responsible entity.

252C(2)   [ Distribution of information]  

The meeting must be called and the statement is to be distributed in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity and information is distributed to members by the responsible entity. The meeting must be held not later than 3 months after the request is given to the responsible entity.

252C(3)   [ Register of members]  

To call the meeting the members requesting the meeting may ask the responsible entity under section 173 for a copy of the register of members. Despite paragraph 173(3)(b), the responsible entity must give the members requesting the meeting the copy of the register without charge.

252C(4)   [ Expenses]  

The responsible entity must pay the reasonable expenses the members incurred because the responsible entity failed to call and arrange to hold the meeting and to make the distribution (if any). The responsible entity must not pay those expenses from the scheme's assets.

252C(5)   [ Strict liability offence]  

An offence based on subsection (3) or (4) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 252D   CALLING OF MEETINGS OF MEMBERS BY MEMBERS  

252D(1)   [ Members may call meeting]  

Members of a registered scheme who hold interests carrying at least 5% of the votes that may be cast at a meeting of the scheme's members may call and arrange to hold a meeting of the scheme's members to consider and vote on a proposed special resolution or a proposed extraordinary resolution. The members calling the meeting must pay the expenses of calling and holding the meeting.

252D(2)   [ How meeting to be called]  

The meeting must be called in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity.

252D(3)   [ Percentage of votes]  

The percentage of the votes carried by interests that members hold is to be worked out as at the midnight before the meeting is called.

SECTION 252E   CALLING OF MEETINGS OFMEMBERS BY THE COURT  

252E(1)   [ Court may order meeting]  

The Court may order a meeting of a registered scheme's members to be called to consider and vote on a proposed special or extraordinary resolution if it is impracticable to call the meeting in any other way.

252E(2)   [ Who may apply for order]  

The Court may make the order on application by:

(a) the responsible entity; or

(b) any member of the scheme who would be entitled to vote at the meeting.

Note: For the directions the Court may give for calling, holding or conducting a meeting it has ordered be called, see section 1319.

Division 2 - How to call meetings of members  

SECTION 252F  

252F   AMOUNT OF NOTICE OF MEETINGS  
At least 21 days notice must be given of a meeting of the members of a registered scheme. However, the scheme's constitution may specify a longer minimum period of notice.

SECTION 252G   NOTICE OF MEETINGS OF MEMBERS TO MEMBERS, DIRECTORS AND AUDITORS  
Notice to members, directors and auditors individually

252G(1)    
Written notice of a meeting of a registered scheme ' s members must be given to:

(a)    each member of the scheme entitled to vote at the meeting; and

(b)    each director of the responsible entity; and

(c)    the auditor of the scheme; and

(d)    the auditor of the scheme compliance plan.

If an interest is held jointly, notice need only be given to 1 of the members.

Notice to joint members

252G(2)    
Unless the scheme ' s constitution provides otherwise, notice to joint members must be given to the joint member named first in the register of members.

How notice is given

252G(3)    
Unless the scheme ' s constitution provides otherwise, the responsible entity may give notice of the meeting to a member:

(a)    personally; or

(b)    by sending it by post to the address for the member in the register of members or an alternative address (if any) nominated by the member; or

(c)    

in the manner mentioned in paragraph 110D(1)(b) , (c) or (d) .

When notice is given

252G(4)    

Unless the scheme ' s constitution provides otherwise, a notice of meeting is taken to be given:

(a)    if it is sent by post - 3 days after it is posted; or

(aa)    

if it is sent by sending the member information in accordance with paragraph 110D(1)(b) by post - 3 days after the information is posted; or

(b)    

if it is sent by means of an electronic communication in accordance with paragraph 110D(1)(c) - on the business day after it is sent; or

(c)    

if it is sent by giving the member information in accordance with paragraph 110D(1)(d) - on the business day after the day on which the information is sent to the member.

SECTION 252H   AUDITORS ENTITLED TO OTHER COMMUNICATIONS  

252H(1)   [ Responsible entity required to provide]  

The responsible entity of a registered scheme must give the auditor of the scheme and the auditor of the scheme compliance plan any other communications relating to the meeting that a member of the scheme is entitled to receive.

252H(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 252J  

252J   CONTENTS OF NOTICE OF MEETINGS OF MEMBERS  
A notice of a meeting of a registered scheme ' s members must:

(a)    

set out:

(i) if there is only one location at which the members who are entitled to physically attend the meeting may do so - the date, time and place for the meeting; and

(ii) if there are 2 or more locations at which the members who are entitled to physically attend the meeting may do so - the date and time for the meeting at each location, and the main location for the meeting; and

(iii) if virtual meeting technology is to be used in holding the meeting - sufficient information to allow the members to participate in the meeting by means of the technology; and

(b)    state the general nature of the meeting ' s business; and

(c)    if a special or extraordinary resolution is to be proposed at the meeting - set out an intention to propose the special or extraordinary resolution and state the resolution; and

(d)    contain a statement setting out the following information:

(i) that the member has a right to appoint a proxy;

(ii) that the proxy does not need to be a member of the registered scheme;

(iii) that if the member appoints 2 proxies the member may specify the proportion or number of votes the proxy is appointed to exercise; and

(e)    

specify at least one of the following:

(i) a place for the purposes of receipt of proxy appointments and proxy appointment authorities;

(ii) sufficient information to allow members to comply with section 252Z by means of an electronic communication.

Note: There may be other requirements for disclosure to members.

SECTION 252K  

252K   NOTICE OF ADJOURNED MEETINGS  
When a meeting is adjourned, new notice of the adjourned meeting must be given if the meeting is adjourned for 1 month or more.

Division 3 - Members' rights to put resolutions etc. at meetings of members  

SECTION 252L   MEMBERS' RESOLUTIONS  

252L(1)   [ Notice of resolution]  

The following members of a registered scheme may give the responsible entity notice of a resolution that they propose to move at a meeting of the scheme's members:

(a) members with at least 5% of the votes that may be cast on the resolution; or

(b) at least 100 members who are entitled to vote at a meeting of the scheme's members.

252L(1A)   [ Regulations]  

The regulations may prescribe a different number of members for the purposes of the application of paragraph (1)(b) to:

(a) a particular scheme; or

(b) a particular class of scheme.

Without limiting this, the regulations may specify the number as a percentage of the total number of members of the scheme.

252L(1B)   [ Requirements for resolution]  

The resolution must be:

(a) a special resolution; or

(b) an extraordinary resolution; or

(c) a resolution to remove the responsible entity of a scheme that is listed and choose a new responsible entity.

252L(2)   [ Form and content of notice]  

The notice must:

(a) be in writing; and

(b) set out the wording of the proposed resolution; and

(c) be signed by the members giving the notice.

252L(3)   [ Separate copies]  

Separate copies of a document setting out the notice may be used for signing by members if the wording of the notice is identical in each copy.

252L(4)   [ Percentage of votes]  

The percentage of the votes that members have is to be worked out as at the midnight before the members give the notice.

SECTION 252M   RESPONSIBLE ENTITY GIVING NOTICE OF MEMBERS' RESOLUTIONS  

252M(1)   [ When resolution to be considered]  

If a responsible entity has been given notice of a resolution under section 252L, the resolution is to be considered at the next meeting of the scheme's members that occurs more than 2 months after the notice is given.

252M(2)   [ Notice to be given]  

The responsible entity must give all the members of the scheme notice of the resolution at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a meeting.

252M(3)   [ Cost]  

The responsible entity is responsible for the cost of giving members notice of the resolution if the responsible entity receives the notice in time to send it out to members with the notice of meeting.

252M(4)   [ Expenses]  

The members requesting the meeting are jointly and individually liable for the expenses reasonably incurred by the responsible entity in giving members notice of the resolution if the responsible entity does not receive the members' notice in time to send it out with the notice of meeting. A resolution may be passed at a meeting of the scheme's members that the responsible entity is to meet the expenses out of the scheme's assets.

252M(5)   [ When notice need not be given]  

The responsible entity need not give notice of the resolution:

(a) if it is more than 1,000 words long or defamatory; or

(b) if the members making the request are to bear the expenses of sending the notice out - unless the members give the responsible entity a sum reasonably sufficient to meet the expenses that it will reasonably incur in giving the notice.

SECTION 252N   MEMBERS' STATEMENTS TO BE DISTRIBUTED  

252N(1)   [ Statement requested by members]  

Members may request a responsible entity to give to all its members a statement provided by the members making the request about:

(a) a resolution that is proposed to be moved at a meeting of the scheme's members; or

(b) any other matter that may be properly considered at a meeting of the scheme's members.

252N(2)   [ Who may make request]  

The request must be made by:

(a) members with at least 5% of the votes that may be cast on the resolution; or

(b) at least 100 members who are entitled to vote at the meeting.

252N(2A)   [ Regulations may prescribe different number]  

The regulations may prescribe a different number of members for the purposes of the application of paragraph (2)(b) to:

(a) a particular scheme; or

(b) a particular class of scheme.

Without limiting this, the regulations may specify the number as a percentage of the total number of members of the scheme.

252N(3)   [ Form of request]  

The request mustbe:

(a) in writing; and

(b) signed by the members making the request; and

(c) given to the responsible entity.

252N(4)   [ Separate copies]  

Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

252N(5)   [ Percentage of votes]  

The percentage of the votes that members have is to be worked out as at the midnight before the request is given to the responsible entity.

252N(6)   [ Distribution of statement]  

After receiving the request, the responsible entity must distribute to all the members of the scheme a copy of the statement at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a meeting.

252N(7)   [ Cost]  

The responsible entity is responsible for the cost of making the distribution if the responsible entity receives the statement in time to send it out to members with the notice of meeting.

252N(8)   [ Expenses]  

The members making the request are jointly and individually liable for the expenses reasonably incurred by the responsible entity in making the distribution if the responsible entity does not receive the statement in time to send it out with the notice of meeting. A resolution may be passed at a meeting of the scheme's members that the responsible entity is to meet the expenses out of the scheme's assets.

252N(9)   [ Responsible entity need not comply in certain circumstances]  

The responsible entity need not comply with the request:

(a) if the statement is more than 1,000 words long or defamatory; or

(b) if the members making the request are responsible for the expenses of the distribution - unless the members give the company a sum reasonably sufficient to meet the expenses that it will reasonably incur in making the distribution.

Division 4 - Holding meetings of members  

SECTION 252P  

252P   HOW MEETINGS OF MEMBERS MAY BE HELD  

A registered scheme may hold a meeting of its members:

(a)    at one or more physical venues; or

(b)    at one or more physical venues and using virtual meeting technology; or

(c)    using virtual meeting technology only, if this is required or permitted by the scheme ' s constitution expressly and the provisions of the scheme ' s constitution that require or permit such use were included in the scheme ' s constitution:

(i) at the time the scheme was established; or

(ii) by special resolution of the members of the scheme.

SECTION 252PA   PLACE AND TIME OF MEETINGS AND PRESENCE AT MEETINGS  

252PA(1)    
The place at which a meeting of the members of a registered scheme is held is taken to be:

(a)    if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology) - that physical venue; or

(b)    if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology) - the main physical venue of the meeting as set out in the notice of the meeting; or

(c)    if the meeting is held using virtual meeting technology only - the registered office of the responsible entity of the scheme.

252PA(2)    
The time at which the meeting is held is taken to be the time at the place at which the meeting is taken to be held in accordance with subsection (1) .

252PA(3)    
A member who attends the meeting (whether at a physical venue or by using virtual meeting technology) is taken for all purposes to be present in person at the meeting while so attending.

SECTION 252Q   REASONABLE OPPORTUNITY TO PARTICIPATE  

252Q(1)    
A registered scheme that holds a meeting of its members must give the members entitled to attend the meeting, as a whole, a reasonable opportunity to participate in the meeting.

Note: Section 1322 provides for consequences of a breach of this subsection.

252Q(2)    
Without limiting the scope of subsection (1) , the effects of that subsection include those set out in subsections (3) , (4) , (5) , (6) and (7) .

252Q(3)    
The meeting must be held at a time that is reasonable at:

(a)    if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology) - that physical venue; or

(b)    if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology) - the main physical venue of the meeting as set out in the notice of the meeting; or

(c)    if the meeting is held using virtual meeting technology only - a physical venue at which it would be reasonable to hold the meeting.

252Q(4)    
If the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology), it must be reasonable to hold the meeting at that physical venue.

252Q(5)    
If the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology), it must be reasonable to hold the meeting at its main physical venue as set out in the notice of the meeting.

252Q(6)    
If the meeting is held at more than one physical venue (whether or not it is also held usingvirtual meeting technology), the technology used to hold the meeting at more than one physical venue must be reasonable.

252Q(7)    
If the meeting is held using virtual meeting technology (whether or not it is held at one or more physical venues), that virtual meeting technology must:

(a)    be reasonable; and

(b)    allow the members who are entitled to attend the meeting, and do attend the meeting using that virtual meeting technology, as a whole, to exercise orally and in writing any rights of those members to ask questions and make comments.

SECTION 252R   QUORUM  

252R(1)    
This section applies to a registered scheme subject to the provisions of the scheme ' s constitution.

252R(2)    
The quorum for a meeting of a registered scheme ' s members is 2 members and the quorum must be present at all times during the meeting.

252R(3)    
In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than 1 proxy or representative, count only 1 of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once.

Note 1: For rights to appoint proxies, see section 252V .

Note 2: For body corporate representatives, see section 253B .

252R(4)    

A meeting of the scheme ' s members that does not have a quorum present within 30 minutes after the time for the meeting set out in the notice of meeting is adjourned to a meeting (the resumed meeting ) at a later time.

252R(4A)    

The responsible entity may specify:

(a)    the date and time of the resumed meeting; and

(b)    if any of the scheme ' s members is entitled to physically attend the resumed meeting - the location or locations at which the members may do so; and

(c)    if virtual meeting technology is to be used in holding the meeting - sufficient information to allow members to participate in the resumed meeting by means of the technology.

252R(4B)    

If the responsible entity does not specify one or more of the things mentioned in subsection (4A) :

(a)    if the date is not specified - the meeting is adjourned to the same day in the next week; and

(b)    if the time is not specified - the meeting is adjourned to the same time; and

(c)    if any of the scheme ' s members was entitled to physically attend the meeting and the location is not specified - the meeting is adjourned to the same location or locations as were specified for the original meeting; and

(d)    if virtual meeting technology was used in holding the meeting and sufficient information to allow the scheme ' s members to participate in the meeting by means of the technology is not specified - participation in the resumed meeting by means of the technology must be provided in the same manner as set out in the notice for the original meeting.

252R(5)    
If no quorum is present at the resumed meeting within 30 minutes after the time for the start of the meeting, the meeting is dissolved.

SECTION 252S   CHAIRING MEETINGS OF MEMBERS  

252S(1)   [ Appointment by responsible entity]  

The responsible entity may, in writing, appoint an individual to chair a meeting called under section 252A or 252B.

252S(2)   [ Appointment by members - meeting under s 252A or 252B]  

The members present at a meeting called under section 252A or 252B must elect a member present to chair the meeting (or part of it) if:

(a) a chair has not previously been appointed to chair the meeting; or

(b) a previously appointed chair is not available, or declines to act, for the meeting (or part of the meeting).

252S(3)   [ Appointment by members - meeting under s 252C, 252D or 252E]  

The members present at a meeting called under section 252C, 252D or 252E must elect a member present to chair the meeting. This is not so if the meeting is called under section 252E and the Court has directed otherwise under section 1319.

SECTION 252T   AUDITORS' RIGHT TO BE HEARD AT MEETINGS OF MEMBERS  

252T(1)   [ Attendance at meeting]  

The auditor of a registered scheme and the auditor of the scheme compliance plan are entitled to attend any meeting of the scheme's members.

252T(2)   [ Entitlement to be heard]  

An auditor is entitled to be heard at the meeting on any part ofthe business of the meeting that concerns the auditor in their capacity as auditor.

252T(3)   [ Representative]  

An auditor may authorise a person in writing as their representative for the purpose of attending and speaking at any meeting of the scheme's members.

SECTION 252U   ADJOURNED MEETINGS  

252U(1)   [ Resolution]  

A resolution passed at a meeting resumed after an adjournment is passed on the day it was passed.

252U(2)   [ Unfinished business]  

Only unfinished business is to be transacted at a meeting resumed after an adjournment.

Division 5 - Proxies and body corporate representatives  

SECTION 252V   WHO CAN APPOINT A PROXY  

252V(1)   [ Proxy]  

A member of a registered scheme who is entitled to attend and cast a vote at a meeting of the scheme's members may appoint a person as the member's proxy to attend and vote for the member at the meeting.

252V(2)   [ Number of votes]  

The appointment may specify the proportion or number of votes that the proxy may exercise.

252V(3)   [ One or two proxies]  

A member may appoint 1 or 2 proxies. If the member appoints 2 proxies and the appointment does not specify the proportion or number of the member's votes each proxy may exercise, each proxy may exercise half of the votes.

252V(4)   [ Fractions of votes]  

Disregard any fractions of votes resulting from the application of subsection (2) or (3).

SECTION 252W   RIGHTS OF PROXIES  

252W(1)   Rights of proxies.  

A proxy appointed to attend and vote for a member has the same rights as the member:

(a) to speak at the meeting; and

(b) to vote (but only to the extent allowed by the appointment).

252W(2)   Proxy's right to vote.  

A registered scheme's constitution (if any) may provide that a proxy is not entitled to vote on a show of hands.

Note: Even if the proxy is not entitled to vote on a show of hands, they may make or join in the demand for a poll (see section 253L).

252W(3)   Effect of member's presence on proxy's authority.  

A registered scheme's constitution (if any) may provide for the effect that a member's presence at a meeting has on the authority of a proxy appointed to attend and vote for the member. However, if the constitution does not make such provision, a proxy's authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting.

SECTION 252X   RESPONSIBLE ENTITY SENDING APPOINTMENT FORMS OR LISTS OF PROXIES MUST SEND TO ALL MEMBERS  

252X(1)   [ Requirements]  

If the responsible entity of a registered scheme sends a member a proxy appointment form for a meeting or a list of persons willing to act as proxies at a meeting:

(a) if the member requested the form or list - the responsible entity must send the form or list to all members who ask for it and who are entitled to appoint a proxy to attend and vote at the meeting; or

(b) otherwise - the responsible entity must send the form or list to all its members entitled to appoint a proxy to attend and vote at the meeting.

252X(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 252Y   APPOINTING A PROXY  

252Y(1)   [ When proxy appointment valid]  

An appointment of a proxy is valid if it is signed by the member of the registered scheme making the appointment and contains the following information:

(a) the member's name and address;

(b) the scheme's name;

(c) the proxy's name or the name of the office held by the proxy;

(d) the meetings at which the appointment may be used.

252Y(2)   An appointment may be a standing one.  

A registered scheme's constitution may provide that an appointment is valid even if it contains only some of the information required by subsection (1).

252Y(3)   [ Undated appointment]  

An undated appointment is taken to have been dated on the day it is given to the responsible entity.

252Y(4)   [ Specifying vote]  

An appointment may specify the way the proxy is to vote on a particular resolution. If it does:

(a) the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way; and

(b) if the proxy has 2 or more appointments that specify different ways to vote on the resolution - the proxy must not vote on a show of hands; and

(c) if the proxy is the chair - the proxy must vote on a poll, and must vote that way; and

(d) if the proxy is not the chair - the proxy need not vote on a poll, but if the proxy does so, the proxy must vote that way.

If a proxy is also a member, this subsection does not affect the way that the person can cast any votes they hold as a member.

Note: The scheme's constitution may provide that a proxy is not entitled to vote on a show of hands (see subsection 252W(2)).

252Y(5)   [ Offence]  

A person who contravenes subsection (4) is guilty of an offence, but only if their appointment as a proxy resulted from the responsible entity sending to members:

(a) a list of persons willing to act as proxies; or

(b) a proxy appointment form holding the person out as being willing to act as a proxy.

252Y(5A)   [ Strict liability offence]  

An offence based on subsection (5) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

252Y(6)   [ Witnessing appointment]  

An appointment does not have to be witnessed.

252Y(7)   [ Later appointment]  

A later appointment revokes an earlier one if both appointments could not be validly exercised at the meeting.

SECTION 252Z   PROXY DOCUMENTS  
Section applies subject to scheme ' s constitution

252Z(1)    
Subsections (2) , (3) and (4) apply to a registered scheme subject to the provisions of the scheme ' s constitution.

Documents to be received by responsible entity before meeting

252Z(2)    
For an appointment of a proxy for a meeting of the scheme ' s members to be effective, the following documents must be received by the responsible entity at least 48 hours before the meeting:

(a)    the proxy ' s appointment

(b)    if the appointment is signed by the appointor ' s attorney - the authority under which the appointment was signed or a certified copy of the authority.

Documents received following adjournment of meeting

252Z(3)    

If a meeting of the scheme ' s members has been adjourned, an appointment and any authority received by the responsible entity at least 48 hours before the resumption of the meeting are effective for the resumed part of the meeting.

Receipt of documents

252Z(3A)    

For the purposes of this section, a responsible entity receives an appointment or authority when it is received at any of the following:

(a)    the responsible entity ' s registered office;

(b)    a fax number at the responsible entity ' s registered office;

(c)    a place, fax number or electronic address specified for the purpose in the notice of meeting.

Note: For when a document is received by electronic communication, see section 105A .

Ineffective appointments of fax or electronic notification

252Z(4)    

An appointment of a proxy is ineffective if:

(a)    the responsible entity receives either or both the appointment or authority at a fax number or electronic address; and

(b)    a requirement (if any) in the notice of meeting that:

(i) the transmission be verified in a way specified in the notice; or

(ii) the proxy produce the appointment and authority (if any) at the meeting;

is not complied with.

Constitution or notice of meeting may provide for different notification period

252Z(5)    
The scheme ' s constitution or the notice of meeting may reduce the period of 48 hours referred to in subsection (2) or (3) .

SECTION 253A   VALIDITY OF PROXY VOTE  

253A(1)   Proxy vote valid even if member dies, revokes appointment etc.  

Unless the responsible entity has received written notice of the matter before the start or resumption of the meeting at which a proxy votes, a vote cast by the proxy will be valid even if, before the proxy votes:

(a) the appointing member dies; or

(b) the member is mentally incapacitated; or

(c) the member revokes the proxy's appointment; or

(d) the member revokes the authority under which the proxy was appointed by a third party; or

(e) the member transfers the interest in respect of which the proxy was given.

This subsection applies to a registered scheme subject to the provisions of the scheme's constitution.

Note: A proxy's authority to vote is suspended while the member is present at the meeting (see subsection 252W(3)).

253A(2)   Proxy vote valid even if proxy cannot vote as member.  

A proxy who is not entitled to vote on a resolution as a member may vote as a proxy for another member who can vote if their appointment specifies the way they are to vote on the resolution and they vote that way.

SECTION 253B   BODY CORPORATE REPRESENTATIVE  

253B(1)   [ Appointment of representative]  

A body corporate may appoint an individual as a representative to exercise all or any of its powers at a meeting of a registered scheme's members. The appointment may be a standing one.

253B(2)   [ Content of appointment]  

The appointment must set out what the representative is appointed to do and may set out restrictions on the representative's powers. If the appointment is to be by reference to a position held, the appointment must identify the position.

253B(3)   [ More than one representative]  

A body corporate may appoint more than 1 representative but only 1 representative may exercise the body's powers at any one time.

253B(4)   [ Representative's powers]  

Unless otherwise specified in the appointment, the representative may exercise, on the body corporate's behalf, all of the powers that the body could exercise at a meeting or in voting on a resolution.

Division 6 - Voting at meetings of members  

SECTION 253C   HOW MANY VOTES A MEMBER HAS  

253C(1)   [ Show of hands]  

On a show of hands, each member of a registered scheme has 1 vote.

253C(2)   [ Poll]  

On a poll, each member of the scheme has 1 vote for each dollar of the value of the total interests they have in the scheme.

Note 1: For rights to appoint proxies, see section 252V.

Note 2: Unless otherwise specified in the appointment, a body corporate representative has all the powers that a bodycorporate has as a member (including the power to vote on a show of hands).

SECTION 253D  

253D   JOINTLY HELD INTERESTS  
If an interest in a registered scheme is held jointly and more than 1 member votes in respect of that interest, only the vote of the member whose name appears first in the register of members counts.

SECTION 253E  

253E   RESPONSIBLE ENTITY AND ASSOCIATES CANNOT VOTE IF INTERESTED IN RESOLUTION  
The responsible entity of a registered scheme and its associates are not entitled to vote their interest on a resolution at a meeting of the scheme's members if they have an interest in the resolution or matter other than as a member. However, if the scheme is listed, the responsible entity and its associates are entitled to vote their interest on resolutions to remove the responsible entity and choose a new responsible entity.

Note: The responsible entity and its associates may vote as proxies if their appointments specify the way they are to vote and they vote that way (see subsection 253A(2)).

SECTION 253F  

253F   HOW TO WORK OUT THE VALUE OF AN INTEREST  

The value of an interest in a registered scheme is:

(a)    if it is quoted on a declared financial market - the last sale price on that market on the trading day immediately before the day on which the poll is taken; or

(b)    if it is not quoted on a declared financial market and the scheme is liquid and has a withdrawal provision in its constitution - the amount that would be paid for the interest under that provision on the business day immediately before the day on which the poll is taken; or

(c)    in any other case - the amount that the responsible entity determines in writing to be the price that a willing but not anxious buyer would pay for the interest if it was sold on the business day immediately before the day on which the poll is taken.

SECTION 253G  

253G   OBJECTIONS TO A RIGHT TO VOTE  
A challenge to a right to vote at a meeting of members of a registered scheme:

(a) may only be made at the meeting; and

(b) must be determined by the chair, whose decision is final.

SECTION 253H  

253H   VOTES NEED NOT ALL BE CAST IN THE SAME WAY  
On a poll a person voting who is entitled to 2 or more votes:

(a) need not cast all their votes; and

(b) may cast their votes in different ways.

Note: For proxy appointments that specify the proxy is to vote on a particular resolution, see subsection 252Y(4).

SECTION 253J   HOW VOTING IS CARRIED OUT  

253J(1)    
A special or extraordinary resolution put to the vote at a meeting of a registered scheme ' s members must be decided on a poll.

253J(1A)    

A resolution put to the vote at a meeting of the members of a registered scheme that is listed must be decided on a poll if:

(a)    the notice of the meeting set out an intention to propose the resolution and stated the resolution; or

(b)    the responsible entity of the scheme has given notice of the resolution in accordance with section 252M (member ' s resolutions).

253J(2)    

Any other resolution put to the vote at a meeting of a registered scheme ' s members may be decided on a show of hands unless a poll is demanded.

253J(2A)    

A resolution mentioned in subsection (1A) or (2) is passed on a poll if it has been passed by more than 50% of the votes cast by members entitled to vote on the resolution.

253J(3)    
On a show of hands, a declaration by the chair is conclusive evidence of the result. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.

Note: Even though the chair ' s declaration is conclusive of the voting results, the members present may demand a poll (see paragraph 253L(3)(c) ).

SECTION 253K   MATTERS ON WHICH A POLL MAY BE DEMANDED  

253K(1)   [ Demanding a poll]  

A poll may be demanded on any resolution.

253K(2)   [ Constitution may provide certain things]  

A registered scheme's constitution may provide that a poll cannot be demanded on any resolution concerning:

(a) the election of the chair of a meeting; or

(b) the adjournment of a meeting.

253K(3)   [ Withdrawal of demand]  

A demand for a poll may be withdrawn.

SECTION 253L   WHEN A POLL IS EFFECTIVELY DEMANDED  

253L(1)   [ Who may demand a poll]  

At a meeting of a registered scheme's members, a poll may be demanded by:

(a) at least 5 members present entitled to vote on the resolution; or

(b) members present with at least 5% of the votes that may be cast on the resolution on a poll; or

(c) the chair.

253L(2)   [ Scheme's constitution]  

A registered scheme's constitution may provide that fewer members or members with a lesser percentage of votes may demand a poll.

253L(3)   [ When poll may be demanded]  

The poll may be demanded:

(a) before a vote is taken; or

(b) before the voting results on a show of hands are declared; or

(c) immediately after the voting results on a show of hands are declared.

253L(4)   [ Percentage of votes]  

The percentage of votes that members have is to be worked out as at close of business on the day before the poll is demanded.

SECTION 253LA   REQUIREMENTS FOR A SPECIAL RESOLUTION OR AN EXTRAORDINARY RESOLUTION  

253LA(1)    
For a resolution of the members of a registered scheme to have effect as a special resolution:

(a)    notice given under section 252G of the meeting at which the resolution is proposed must include the information required by paragraph 252J(c) in relation to the resolution; and

(b)    the resolution must be passed by at least 75% of the votes cast by members of the scheme who are entitled to vote on the resolution; and

(c)    the resolution must be otherwise valid.

253LA(2)    
For a resolution of the members of a registered scheme to have effect as an extraordinary resolution:

(a)    notice given under section 252G of the meeting at which the resolution is proposed must include the information required by paragraph 252J(c) in relation to the resolution; and

(b)    the resolution must be passed by at least 50% of the votes that may be cast by members of the scheme who are entitled to vote on the resolution (including members who are not present in person or by proxy).

(c)    the resolution must be otherwise valid.

Division 7 - Minutes and members' access to minutes  

SECTION 253M   MINUTES  

253M(1)    
A responsible entity of a registered scheme must keep minute books in which it records within 1 month:

(a)    proceedings of meetings of the scheme ' s members; and

(b)    resolutions of meetings of the scheme ' s members.

253M(2)    
The responsible entity must ensure that minutes of a meeting are signed within a reasonable time after the meeting by the chair of the meeting or the chair of the next meeting.

253M(3)    
The responsible entity must keep the minute books at:

(a)    its registered office; or

(b)    its principal place of business in this jurisdiction; or

(c)    another place in this jurisdiction approved by ASIC.

253M(3A)    

An offence based on subsection (1) , (2) or (3) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

253M(4)    
A minute that is so recorded and signed is evidence of the proceeding or resolution to which it relates, unless the contrary is proved.

SECTION 253N   MEMBERS' ACCESS TO MINUTES  

253N(1)   [ Inspection by members]  

The responsible entity of a registered scheme must ensure that the minute books for the meetings of the scheme's members are open for inspection by members free of charge.

253N(2)   [ Copy of minutes]  

A member of a registered scheme may ask the responsible entity in writing for a copy of any minutes of a meeting of the scheme's members or an extract of the minutes.

253N(3)   [ No payment required]  

If the responsible entity does not require the member to pay for the copy, the responsible entity must send it:

(a) within 14 days after the member asks for it; or

(b) within any longer period that ASIC approves.

253N(4)   [ Payment required]  

If the responsible entity requires payment for the copy, the responsible entity must send it:

(a) within 14 days after the responsible entity receives the payment; or

(b) within any longer period that ASIC approves.

The amount of any payment the responsible entity requires cannot exceed the prescribed amount.

253N(5)   [ Strict liability offence]  

An offence based on subsection (1), (3) or (4) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .