Corporations Amendment (Meetings and Documents) Act 2022 (9 of 2022)

Schedule 2   Meetings and sending documents

Corporations Act 2001

2   At the end of Part 1.2AA

Add:

Division 2 - Technology neutral sending of documents to be sent to, among others, directors, members and auditors, and related matters

110C Documents to which this Division applies

Sending documents

(1) This Division applies to any document covered by subsection (2) that is required or permitted under this Act to be sent to a person (the recipient ) by one of the following (the sender ):

(a) a company;

(b) the responsible entity of a registered scheme;

(c) a disclosing entity;

(d) an entity of a kind specified in regulations made for the purposes of this paragraph.

Covered documents

(2) This subsection covers a document that:

(a) if the sender is a company or responsible entity of a registered scheme:

(i) relates to a meeting of the members of the company or registered scheme (including a meeting of a class of members); or

(ii) for a company - relates to a resolution to be considered by the members of the company (including a resolution to be considered by a class of members of a company) without a meeting; or

(b) is a report mentioned in section 314 (annual financial reporting by companies, registered schemes and disclosing entities to members); or

(c) is a notice under section 110K (notice of members' rights); or

(d) is in a class of documents specified in regulations made for the purposes of this paragraph.

Note: For when and where a document is sent and received by electronic communication, see sections 105A and 105B.

(3) However, this Division does not apply to a document that is required or permitted under this Act to be sent to ASIC or the Registrar.

References to sending documents

(4) This Division applies to a requirement or permission to send a document, whether the expression send , give or serve , or any other expression, is used.

Regulations may modify this Division for certain senders

(5) The regulations may modify the operation of this Division (other than this section) for the purpose of giving effect to regulations made for the purposes of paragraph (1)(d).

(6) Regulations made for the purposes of subsection (5) have effect according to their terms.

110D Technology neutral sending of documents

(1) The document may be sent to the recipient:

(a) by sending the document in a physical form; or

(b) if subsection (2) is satisfied - by sending the recipient sufficient information in physical form to allow the recipient to access the document electronically; or

(c) if subsection (2) is satisfied - by sending the document in electronic form by means of an electronic communication; or

(d) if subsection (2) is satisfied - by sending the recipient sufficient information in electronic form, by means of an electronic communication, to allow the recipient to access the document electronically; or

(e) if subsection (2) is satisfied and the document is covered by subsection (3) - by making the document readily available in electronic form on a website.

Note: A requirement for the sender to send a document to which this Division applies is met if the document is sent in accordance with this section and in accordance with any timing requirements under this Act.

(2) This subsection is satisfied if, at the time the document is sent, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.

Documents that may be sent by publication on a website

(3) This subsection covers a document that:

(a) is a report mentioned in section 314 (annual financial reporting by companies, registered schemes and disclosing entities to members); or

(b) is in a class of documents specified in regulations made for the purpose of this paragraph.

Other ways of sending documents not limited

(4) Subsection (1) does not limit the ways in which a person may send a document.

Note: For example, a company's constitution may set out other ways in which a document may be sent.

110E Member's election to be sent documents in physical form or electronic form, or not to be sent documents

(1) This section applies if:

(a) where the sender is a company - the recipient is a member of the company; or

(b) where the sender is the responsible entity of a registered scheme - the recipient is a member of the scheme; or

(c) where the sender is a disclosing entity mentioned in subsection 111AC(1) - the recipient is a member of the disclosing entity; or

(d) where the sender is a disclosing entity mentioned in subsection 111AC(2) - the recipient is a member of the managed investment scheme mentioned in that subsection.

Election to be sent documents in physical form or electronic form

(2) The recipient may elect to be sent documents to which this Division applies:

(a) in physical form; or

(b) in electronic form;

by notifying the sender (whether or not in writing) of the election.

Note 1: Section 110F requires the sender to comply with an election to be sent documents to which this Division applies in a particular form.

Note 2: Regardless of any election under this section, if the sender is required under this Act to send a document to which this Division applies to the recipient, that requirement is met if the document is sent in accordance with section 110D and in accordance with any timing requirements under this Act.

(3) An election under subsection (2) may be made in relation to:

(a) all documents to which this Division applies; or

(b) a specified class or classes of documents to which this Division applies.

Election not to be sent documents

(4) The recipient may elect not to be sent documents covered by subsection (5) by notifying the sender (whether or not in writing) of the election.

(5) This subsection covers the following documents:

(a) reports mentioned in section 314 (annual financial reporting by companies, registered schemes and disclosing entities to members);

(b) documents to which this Division applies that are prescribed by the regulations for the purposes of this paragraph.

(6) An election under subsection (4) may be made in relation to:

(a) all of the documents covered by subsection (5); or

(b) a specified class or classes of documents covered by subsection (5).

When an election is in force

(7) An election under subsection (2) or (4) is in force in relation to those documents during the period:

(a) beginning on:

(i) unless subparagraph (ii) or (iii) applies - the first business day after the day on which the sender receives notice (whether or not in writing) of the election from the recipient; or

(ii) unless subparagraph (iii) applies, where the recipient, in notifying the sender of the election, specifies a later day - the first business day after that later day; or

(iii) if regulations made for the purposes of this subparagraph specify another day - that other day; and

(b) ending on:

(i) unless subparagraph (ii) or (iii) applies - the first business day after the day on which the sender receives notice (whether or not in writing) from the recipient withdrawing the election; or

(ii) unless subparagraph (iii) applies, where the recipient, in notifying the sender of the withdrawal, specifies a later day - the first business day after that later day; or

(iii) if regulations made for the purposes of this subparagraph specify another day - that other day.

(8) However, an election under subsection (2) to be sent documents to which this Division applies in physical form is not in force in relation to a document if:

(a) the sender is required or permitted under this Act to send the document by a particular day; and

(b) the sender receives notice of the election from the recipient on or after the day that is 30 days immediately before the day mentioned in paragraph (a) of this subsection.

110F Failure to comply with member's election to be sent document in particular form

(1) This section applies if:

(a) an election by the recipient to be sent documents by the sender in physical form or electronic form is in force in relation to a document under section 110E; and

(b) the sender sends the document to the recipient in a manner that does not comply with the election; and

(c) no determination is in force under section 1345 allowing the document to be sent by the sender in that manner (see subsections 1345(2) and (3A)).

(2) The sender contravenes this subsection if the sender does not take reasonable steps to send the document in a manner that complies with the election:

(a) unless paragraph (b) applies - before, or within a reasonable time after, sending the document as mentioned in paragraph (1)(b); or

(b) if the sender is required or permitted under this Act to send the document to the recipient by a particular time - by that time.

(3) A person commits an offence of strict liability if the person contravenes subsection (2).

(4) For the purposes of this section, the following manners of sending the document comply with the election:

(a) for an election to be sent documents in physical form - the manner mentioned in paragraph 110D(1)(a);

(b) for an election to be sent documents in electronic form - a manner mentioned in paragraph 110D(1)(c) or (d).

Effect of contravention

(5) A contravention of subsection (2) by the sender does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Note: In particular, the validity of the sending of the document as mentioned in paragraph (1)(b) is not affected. Regardless of any contravention of subsection (2), if the sender is required under another provision of this Act to send a document to which this Division applies, that requirement is met if the document is sent in accordance with section 110D and in accordance with any timing requirements under that other provision.

110G Failure to comply with member's election not to be sent documents

(1) This section applies if:

(a) an election by the recipient not to be sent documents from the sender is in force in relation to a document under section 110E; and

(b) the sender sends the document to the recipient, other than in the manner mentioned in paragraph 110D(1)(e).

(2) The sender contravenes this subsection if the sender did not take reasonable steps to avoid sending the document as mentioned in paragraph (1)(b).

(3) A person commits an offence of strict liability if the person contravenes subsection (2).

110H Effect of election not to be sent documents

(1) This section applies if:

(a) the sender is required or permitted to send a document to which this Part applies to the recipient in accordance with a provision of this Act (other than this Division); and

(b) an election under section 110E not to be sent documents is in force in relation to the document.

(2) For the purposes of the provision mentioned in paragraph (1)(a) of this section:

(a) the sender is taken to send the document, as required or permitted in accordance with that provision, at the later of:

(i) the time the recipient's election mentioned in paragraph (1)(b) came into force; and

(ii) the earliest time at which the sender could have sent the document in accordance with the provision mentioned in paragraph (1)(a); and

(b) the recipient is taken to receive the document when it is taken to be sent under paragraph (a) of this subsection.

110J Ad hoc requests to be sent documents in a particular form

(1) This section applies if:

(a) the recipient is covered by subsection (3); and

(b) the recipient requests (whether or not in writing) the sender to send a particular document to which this Part applies to the recipient in physical form, or in electronic form; and

(c) either:

(i) the sender is required or permitted under this Act to send the document to the recipient by a particular time; or

(ii) if subparagraph (i) does not apply - the sender has sent the document to the recipient in a manner that would not comply with the request; and

(d) the request is made:

(i) if subparagraph (c)(i) applies - within a reasonable time before the particular time mentioned in that subparagraph; or

(ii) if subparagraph (c)(ii) applies - within a reasonable time after the sender sends the document as mentioned in that subparagraph; and

(e) at the time the request is made:

(i) the sender has not yet sent the document to the recipient in a manner that would comply with the request; and

(ii) no determination is in force under section 1345 allowing the document to be sent by the sender in a manner that would not comply with the request (see subsections 1345(2) and (3A)).

(2) The sender must take reasonable steps to send the document to the recipient in a manner that complies with the request by the later of the following:

(a) 3 business days after the day on which the sender received the request;

(b) if the sender is required or permitted under this Act to send the document by a particular time - that time.

Note: A determination under section 1345 may extend the time within which a document is required to be sent by the sender to the recipient.

(3) The recipient is covered by this subsection if:

(a) where the sender is a company - the recipient is a member of the company; or

(b) where the sender is the responsible entity of a registered scheme - the recipient is a member of the scheme; or

(c) where the sender is a disclosing entity mentioned in subsection 111AC(1) - the recipient is a member of the disclosing entity; or

(d) where the sender is a disclosing entity mentioned in subsection 111AC(2) - the recipient is a member of the managed investment scheme mentioned in that subsection.

(4) For the purposes of subparagraph (1)(e)(i) and subsection (2), a physical form of the document is taken to have been sent to the recipient:

(a) when the document is posted; or

(b) if the document is sent by courier - when the document is given to the courier.

(5) An offence based on subsection (2) is an offence of strict liability.

(6) For the purposes of this section, the following manners of sending the document comply with the request:

(a) for a request to be sent the document in physical form - the manner mentioned in paragraph 110D(1)(a);

(b) for a request to be sent the document in electronic form - a manner mentioned in paragraph 110D(1)(c) or (d).

110K Obligation to give notice of members' rights

(1) A public company must:

(a) send the members of the company, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

(b) make such a notice readily available on a website.

(2) The responsible entity of a registered scheme must:

(a) send the members of the scheme, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

(b) make such a notice readily available on a website.

(3) A disclosing entity must:

(a) send the members mentioned in paragraph 110E(1)(c) or (d) in relation to the disclosing entity, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

(b) make such a notice readily available on a website.

(4) For the purposes of subsections (1), (2) and (3), the matters required to be set out in the notice are:

(a) members' rights to elect under section 110E, and to request under section 110J, to be sent documents in physical form; and

(b) members' rights to elect under section 110E, and to request under section 110J, to be sent documents in electronic form; and

(c) members' rights to elect under section 110E not to be sent documents covered by subsection 110E(5).

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