Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (82 of 2021)

Schedule 1   Virtual meetings and electronic communication of documents

Part 1   Main amendments

Corporations Act 2001

31   After Part 2G.4

Insert:

Part 2G.5 - Virtual meetings, electronic communication of documents, and recording and keeping of minute books

Division 1 - Interpretation

253P References to Chapter 2G meetings

In this Part:

Chapter 2G meeting means:

(a) a meeting of a company's members; or

(b) a meeting of the directors of a company (including meetings of a committee of directors); or

(c) a meeting of a registered scheme's members.

Division 2 - Virtual meetings

253Q Virtual meetings

(1) Virtual meeting technology may be used in holding a Chapter 2G meeting, provided the technology gives the persons entitled to attend the meeting, as a whole, a reasonable opportunity to participate without being physically present in the same place.

(2) To avoid doubt:

(a) a reasonable opportunity to participate includes a reasonable opportunity to exercise a right to speak; and

(b) a person may elect to exercise a right to speak (including a right to ask questions) orally rather than in writing.

(3) All persons so participating in the meeting are taken for all purposes to be present in person at the meeting while so participating.

(4) All persons so participating in the meeting who are entitled to vote at the meeting:

(a) must be given the opportunity to participate in the vote in real time; and

(b) may be given the opportunity to record a vote in advance of the meeting at the election of the voter.

(5) If:

(a) virtual meeting technology is used in holding a Chapter 2G meeting; and

(b) a document is required or permitted to be tabled at the meeting;

the document is taken to have been tabled at the meeting if the document is:

(c) given to the persons entitled to attend the meeting (whether physically or using virtual meeting technology) before the meeting; or

(d) made accessible to the persons attending the meeting (whether physically or using virtual meeting technology) during the meeting.

253QA Place and time of virtual meetings

(1) This section applies in relation to a Chapter 2G meeting if virtual meeting technology is used in holding the meeting.

(2) If any of the persons entitled to attend the meeting is entitled to physically attend the meeting:

(a) the place for the meeting is taken to be:

(i) if there are 2 or more locations at which persons who are entitled to physically attend the meeting may do so - the main location for the meeting as set out in the notice of the meeting; and

(ii) otherwise - the location where the persons may physically attend the meeting; and

(b) the time for the meeting is taken to be the time at the place for the meeting.

(3) If none of the persons entitled to attend the meeting is entitled to physically attend the meeting:

(a) the place for the meeting is taken to be the address of:

(i) if the meeting is a meeting of a company's members or of the directors of a company - the registered office of the company; or

(ii) if the meeting is a meeting of a registered scheme's members - the registered office of the responsible entity for the registered scheme; and

(b) the time for the meeting is taken to be the time at the place for the meeting.

Division 3 - Electronic communication and signatures

253R Documents to which this Division applies

This Division applies to:

(a) any document that is required or permitted to be given to a person (the recipient ) under this Act that relates to a Chapter 2G meeting, including but not limited to the following:

(i) a request in relation to such a meeting;

(ii) a notice of such a meeting;

(iii) a notice of a resolution or record of a resolution;

(iv) a statement in relation to such a meeting, or in relation to a matter to be considered at such a meeting;

(v) the appointment of a proxy in relation to such a meeting, or any other document in relation to a proxy;

(vi) a question for, or response to a question by, an auditor of the company;

(vii) minute books; and

(b) any document that is required or permitted to be given to a person (the recipient ) under this Act that relates to a resolution to be considered without a meeting; and

(c) any document:

(i) that relates to a Chapter 2G meeting, or to a resolution to be considered without a meeting; and

(ii) that is required to be signed by a person under this Act.

253RA Giving the document

(1) The document may be given to the recipient by means of an electronic communication.

(2) The document may be given by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.

(3) However, an electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given:

(a) it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference; and

(b) an election by the recipient to receive documents in hard copy only is not in force in relation to the document under section 253RB (for a document relating to a company) or section 253RC (for a document relating to a registered scheme).

Note: An election under section 253RB or 253RC can only be made if the recipient is a member of the company or registered scheme.

(4) This section does not apply to a document that is required or permitted to be given to ASIC.

253RB Elections to receive documents in hard copy only - companies

(1) A member of a company may elect to receive documents to which this Division applies in hard copy only.

(2) The election is in force in relation to those documents during the period:

(a) beginning on the day on which the member gives the company notice in writing of the election; and

(b) ending on the day on which the member gives the company notice in writing withdrawing the election.

(3) However, the election is not in force in relation to a document if:

(a) both of the following are satisfied:

(i) the document relates to a Chapter 2G meeting;

(ii) notice in writing of the election is given to the company on or after the day that is 10 business days immediately before the day on which the minimum notice period for the meeting under section 249H or 249HA begins; or

(b) both of the following are satisfied:

(i) the document relates to a resolution to be considered without a meeting;

(ii) notice in writing of the election is given to the company on or after the day the document is given to the member.

253RC Elections to receive documents in hard copy only - registered schemes

(1) A member of a registered scheme may elect to receive documents to which this Division applies in hard copy only.

(2) The election is in force in relation to those documents during the period:

(a) beginning on the day on which the member gives the responsible entity for the registered scheme notice in writing of the election; and

(b) ending on the day on which the member gives the responsible entity for the registered scheme notice in writing withdrawing the election.

(3) However, the election is not in force in relation to a document if:

(a) both of the following are satisfied:

(i) the document relates to a Chapter 2G meeting;

(ii) notice in writing of the election is given to the responsible entity for the registered scheme on or after the day that is 10 business days immediately before the day on which the minimum notice period for the meeting under section 252F begins; or

(b) both of the following are satisfied:

(i) the document relates to a resolution to be considered without a meeting;

(ii) notice in writing of the election is given to the responsible entity for the registered scheme on or after the day the document is given to the member.

253RD Signing the document

(1) If the document is required to be signed by a person, that requirement is taken to have been met in relation to the electronic communication of the document, or access to the document electronically, if:

(a) a method is used to identify the person and to indicate the person's intention to sign a copy or counterpart of the document; and

(b) the copy or counterpart includes the entire contents of the document; and

(c) the method used was either:

(i) as reliable as appropriate for the purpose for which the document was generated or communicated, in light of all the circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.

(2) For the purposes of paragraph (1)(b), a copy or counterpart of a document need not include:

(a) the signature of another person signing the document; or

(b) any material included in the document to identify another person signing the document or to indicate another person's intention in respect of the contents of the document.

(3) If:

(a) under this Act, the signature of a person is required on a document; and

(b) the person signs the document in accordance with subsection (1); and

(c) the person submits the document for lodgement;

ASIC must not refuse to receive or register the document on the basis that the document has not been signed.

Division 4 - Recording and keeping of minute books

253S Electronic recording and keeping of minute books

(1) If information is required to be recorded in a minute book, the information may be recorded in electronic form if, at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.

(2) If a minute book is required to be kept at a place, the requirement is taken to be satisfied if:

(a) an electronic form of the minute book is open for inspection at the place in accordance with this Act; and

(b) having regard to all the relevant circumstances at the time of the generation of the electronic form of the minute book, the method of generating the electronic form of the minute book provided a reliable means of assuring the maintenance of the integrity of the information contained in the minute book; and

(c) at the time of the generation of the electronic form of the minute book, it was reasonable to expect that the information contained in the electronic form of the minute book would be readily accessible so as to be useable for subsequent reference.

(3) For the purposes of subsection (2), the integrity of information contained in a minute book is maintained if, and only if, the information has remained complete and unaltered, apart from:

(a) the addition of any endorsement; or

(b) any immaterial change;

which arises in the normal course of communication, storage or display.