Companies (including corporate collective investment vehicles (CCIVs)) and registered schemes can hold virtual-only meetings of members if expressly required or permitted by their constitutions.
For the 2024 annual general meeting (AGM) season, companies should ensure their constitutions have been amended if they wish to hold virtual-only meetings of members.
The Government has appointed an independent panel to review the meetings and documents amendments to the Corporations Act 2001.
There are specific requirements for how an entity may amend the constitution, including passing a special resolution for company constitutions and, subject to some exceptions, a special resolution for the constitution of a registered scheme or CCIV. When a constitution is amended:
a public company must lodge with ASIC a copy of a special resolution for the modification, along with a copy of the modification, within 14 days after it is passed. These resolutions are lodged with ASIC under Form 205J Notification of resolution – alteration to constitution;
a registered scheme must lodge with ASIC a copy of the modified or replacement constitution along with Form 5101 Notification of change to managed investment scheme’s constitution. The modified or replacement constitution of the registered scheme cannot take effect until a copy has been lodged; and
a CCIV must lodge with ASIC a copy of the modified or replacement constitution within 14 days after the modification or replacement. The modified or replacement constitution of the CCIV takes effect when a copy of it is lodged with ASIC or, if applicable, on a later date that the corporate director of the CCIV had specified when the modified or replacement constitution would take effect.
The introduction of virtual-only meetings
In 2020, as a response to the COVID-19 pandemic, the Australian Government and ASIC implemented a range of temporary measures to hold meetings of members flexibly, due to ongoing restrictions on gatherings. In 2022, permanent amendments were made to allow for virtual-only meetings if they were expressly permitted or required by an entity’s constitution. The constitution requirement ensures the use of virtual-only meetings reflects how members wish to engage with their companies or registered schemes. Hybrid meetings don’t require an entity’s constitution to be amended.
ASIC’s review and findings
Meetings are the primary means for members to engage with companies (including CCIVs) and registered schemes. It provides an important opportunity for members to hear from directors, ask questions, participate in the meeting and hold boards to account.
ASIC recently reviewed a sample of 643 notices of meeting of public companies between 1 July 2022 to 31 December 2023. A small proportion of companies in the sample held virtual-only meetings, and it appeared some did not have constitutions that expressly required or permitted virtual-only meetings. Even if their constitutions did allow for virtual-only meetings, the resolutions had not been lodged with ASIC. We have written to these particular companies to remind them of their obligations.
The Statutory Review
The Statutory Review of the Meetings and Documents Amendments is currently underway and is reviewing the 2022 amendments that allow virtual-only meetings. The consultation is open until 19 July 2024. The legislation for the Statutory Review contains strict timing requirements. Under the terms of reference, the Panel conducting the review must report to the Government by 14 August 2024.
For more information, see our published FAQs on Virtual meetings for companies and registered schemes to explain the permanent amendments which permit hybrid and virtual-only meetings.
