THE CORPORATIONS LAW

CHAPTER 2D - OFFICERS AND EMPLOYEES

PART 2D.3 - APPOINTMENT, REMUNERATION AND CESSATION OF APPOINTMENT OF DIRECTORS

Division 1 - Appointment of directors

SECTION 201C   DIRECTORS OF PUBLIC COMPANIES, OR SUBSIDIARIES, OVER 72  

201C(1)  [Authority]  

A person who has turned 72 may only be appointed or act as a director of:

(a)  a public company; or

(b)  a company that is a subsidiary of a public company;

if authorised to do so under this section.

201C(2)  [Transitional period]  

A person may act as a director of a company during the period that:

(a)  starts on the day on which they turn 72; and

(b)  ends at the conclusion of the AGM beginning next after that day.

201C(3)  [When vacancy created]  

The office of a director of a public company, or of a subsidiary of a public company, becomes vacant at the conclusion of the AGM of the public company, or the subsidiary, beginning next after the director turns 72.

201C(4)  [Application to subsidiary company]  

If a proprietary company is a subsidiary of a public company:

(a)  subsection (3) does not apply to it; and

(b)  a person may continue to act as a director of the proprietary company until the next AGM of the public company after the person turns 72; and

(c)  the person's office of director becomes vacant at the end of that meeting.

Note:

Proprietary companies do not need to hold annual general meetings (see section 250N).

201C(5)  [Validity of acts]  

An act done by a person as a director is valid even if it is afterwards discovered that they had turned 72 at the time when they were appointed or that their appointment had terminated under subsection (3) or (4).

201C(6)  [No default provision]  

If the office of a director has become vacant under subsection (3) or (4), no provision for the automatic re-appointment of retiring directors in default of another appointment applies in relation to that director.

201C(7)  [Casual vacancy]  

If a vacancy created under subsection (3) or (4) is not filled at the meeting at which the office became vacant, the office may be filled as a casual vacancy.

201C(8)  [Appointment on special resolution]  

Subject to subsections (9) and (10), a person who has turned 72 may by special resolution be appointed or re-appointed as a director of that company to hold office until the conclusion of the company's next AGM if:

(a)  the resolution states the person's age; and

(b)  the notice of meeting states that the person is a candidate for election who has turned 72 and states the person's age.

201C(9)  [Appointment to subsidiary of public company]  

If the company is a subsidiary of a public company, the appointment or re-appointment referred to in subsection (8) does not have effect unless:

(a)  the person appointed or re-appointed is a director of the public company; or

(b)  the appointment or re-appointment of the person as a director of the company has been approved by a special resolution of the public company and the notice of meeting states that the person is a candidate for election as a director of the company who has turned 72 and states the person's age.

201C(10)  [Appointment to subsidiary company]  

If the subsidiary is a proprietary company:

(a)  the person may be appointed or re-appointed as a director of the subsidiary until the end of the next AGM of the holding company; and

(b)  the appointment does not need a resolution under subsection (8); and

(c)  the appointment must satisfy either paragraph (9)(a) or (b).

201C(11)  [Appointment to company limited by guarantee]  

If:

(a)  the constitution of a company limited by guarantee provides for the holding of postal ballots for the election of a director or directors; and

(b)  a postal ballot for the election of a director or directors is held and in the ballot:

(i) the members entitled to vote have been given notice in writing by the company stating that a candidate for election has turned 72 and stating the age of the candidate; and

(ii) that candidate is elected by a majority of not less than 75% of the members who, being entitled to vote, vote in the ballot;

that candidate may be appointed or re-appointed as a director to hold office until the conclusion of the next AGM of the company.

201C(12)  [ASIC declaration]  

If:

(a)  the constitution of a company limited by guarantee provides for the election or appointment of a director or directors otherwise than by members at a general meeting or by postal ballot of members; and

(b)  ASIC declares in writing that this section does not apply to the company or its directors;

then, subject to the conditions (if any) that ASIC specifies in the declaration, this section does not so apply.

201C(13)  [Effect of vacancy]  

A vacancy in the office of a director occurring under subsection (3) or (4) is not to be taken into account in determining when other directors are to retire.

201C(14)  [Effect of constitution]  

Nothing in this section limits, or affects the operation of, any provision of a company's constitution that prevents any person from being appointed as a director or requiring any director to vacate their office at any age less than 72 years.