The Role of the Company Secretary: Governance, Compliance and Legal Obligations

The company secretary is often misunderstood as an administrative role. Under Australian corporate law, the position is a governance and compliance function responsible for ensuring the company meets its statutory obligations and maintains accurate corporate records. In public companies, appointing a secretary is not optional. For proprietary companies, the appointment is discretionary, but where a secretary is appointed, the role carries legal responsibilities under the Corporations Act 2001.

Is a Company Secretary Legally Required?

Proprietary Companies (Pty Ltd)

A proprietary company is not required to appoint a company secretary. However, if it chooses to appoint one or more secretaries, at least one secretary must ordinarily reside in Australia.

Public Companies

A public company, including a company limited by guarantee (CLG), must have at least one company secretary. At least one secretary must ordinarily reside in Australia. This requirement is mandatory, and non-compliance may constitute a breach of the Corporations Act.

Importantly, many registered charities operate as CLGs. While reporting obligations may be streamlined through the ACNC, the requirement to maintain a company secretary remains a Corporations Act obligation.

What Does the Company Secretary Do?

The secretary's primary function is to support the board and ensure the company complies with its legal and regulatory obligations.

Key responsibilities commonly include:

·       Maintain statutory registers.

·       Preparing and retaining board and member meeting minutes.

·       Managing governance records.

·       Lodging notices and forms with ASIC.

·       Monitoring compliance deadlines.

·       Supporting directors in meeting governance obligations.

·       Maintaining the registered office and company records.

While directors are responsible for managing the company, the secretary is the officer responsible for ensuring governance processes are properly administered and documented.

The company secretary acts as a governance advisor to the board, facilitating effective decision making and compliance, but will only have voting rights where they are also serving as a director or committee member.

Legal Duties of a Company Secretary

A company secretary is an "officer" under the Corporations Act and is subject to many of the same duties that apply to directors.

These include obligations to:

·       Act with care and diligence.

·       Act in good faith and for proper purpose.

·       Act in the best interests of the company.

·       Avoid improper use of position.

·       Avoid improper use of information obtained through the role.

The Act also contemplates personal liability for secretaries in certain circumstances involving company contraventions.

The role should therefore not be viewed as purely administrative. It is a statutory office carrying legal responsibilities.

Who Is the Best Candidate?

The strongest company secretaries are individuals with:

·       A detailed understanding of governance obligations.

·       Knowledge of the Corporations Act.

·       Strong record keeping and compliance capability.

·       The confidence to advise directors on governance risk.

·       Independence and professional judgement.

In smaller organisations, particularly not-for-profits and charities, a director may also serve as company secretary. This is permitted under Australian law.

However, where resources permit, separating the roles improves governance oversight and reduces administrative burden on directors.

Appointing a secretary in public companies is not optional

A secretary is appointed by a director of the company. The company must obtain the individual's written consent before appointment and retain that consent as part of its corporate records.

The secretary must:

·       Be a natural person.

·       Be at least 18 years of age.

·       Meet the applicable residency requirements.

Notification Requirements

Following appointment, resignation or removal of a company secretary, the company must notify ASIC within 28 days. This is generally done through Form 484 - Change to Company Details.

Failure to notify ASIC within the prescribed period may result in late fees and regulatory compliance issues.

For charities registered with the ACNC, changes to directors are generally reported through ACNC processes. However, the company secretary remains an ASIC officeholder and should still be properly appointed and maintained in the company's corporate records and ASIC register.

If you don’t have a company Secretary

Bluestone Advisory Partners can provide experienced board advisory support during periods of transition and assist organisations to identify the skills, experience and governance competencies required for the role.