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Embedded Lawyer-Logic will guide you to determine + generate the right company secretarial documents to approve the appointment of up to 5 new officers:
1️⃣ Minutes of a board meeting; or
2️⃣ Written resolutions of the directors.
➲ Each officer can be appointed as a director, company secretary or both; and
➲ The required Consent/s to Act as a Director/Officer are also included.
You can also set the appointment to take effect:
➲ Immediately;
➲ On a specified date; or
➲ Subject to the satisfaction of any specified conditions.
Our FREE Director ID 💼 Legal Wizard is designed to assist you to determine when you are legally required^ under the Corporations Act 2001 (Cth.) to apply for a Director ID BEFORE you are appointed as a Director or an Alternate Director/Power of Attorney.
Failure to apply for a Director ID when required to do so is a criminal offence under s. 1272C of the Corporations Act 2001 (Cth.) carrying a maximum penalty of $13,200, and potential civil penalties of up to $1,100,000.
For more information please read our FAQ's about Director ID's:
➲ What are the criminal + civil penalties if you fail to have a Director's Identification number?
➲ When do you need to apply for your Director ID?
Once these legal documents have been generated and executed you will need to proceed to notify the Australian Securities and Investments Commission (ASIC) of the appointment/s by lodging a Change to Company Details (formerly ASIC Form 484) on behalf of the Company.
From November 2015, changes to company details must be made online.
Refer to the ASIC website here for more information.
Unless an applicable fee is designated by ASIC for a particular kind of change, such as a change of Company Name, there is generally no fee payable to change or update your company details online.
If you are late (more than 28 days after the change) notifying ASIC of the resolution:
The following Late fees apply:
❌ $83 for up to one month late; or
❌ $344 for over one month late.
You need to register to use ASIC's online services before you can make any changes.
❌ The paper ASIC Form 484 is no longer available.
Once ASIC has received your notification online, they will update your company name within one business day.
To make changes to company details:
1️⃣ Register for online access using your company's corporate key;
2️⃣ Log in to our online services with your company's ACN or ABN;
3️⃣ Enter your username and password;
4️⃣ Select 'Start new form' and select 'Change to Company Details'.
All correspondence is sent to you electronically once you've registered for online services.
You will receive an email alert when the correspondence is available.
This includes your company annual statement.
Social Sharing Image: Courtesy of Nick Fewings on Unsplash
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It is important to compare and contrast the major difference between the standard of the legal duty imposed on Directors in Australia versus the U.S.A.
Reliance on the work of professional advisors is available as a defense in the U.S.A so long as Directors can show they had a sufficient basis to reasonably believe their Professional Advisors are both reliable + competent.
In Australia, Directors are held to a much higher standard!
Under the Corporations Act, Directors have a mandatory Duty of Diligence to take additional steps and to make further inquiries to satisfy themselves with regard to the information and advice provided (even if it is provided by professional advisors they reasonably believe are reliable + competent).
The Business Judgment Rule (BJR) defence/defense is available to Directors in both the U.S.A + Australia.
It appears that the above distinction between the reliance on professional advisors v. Duty of Diligence has been incorporated into each countries application of the BJR.
In the Australian version of the BJR, the third element states:
3️⃣ Informs her or himself about the subject matter of the judgment to the extent she or he reasonably believes to be appropriate …
In the U.S.A version of the BJR (refer below), Director's need to make an informed decision, but in doing so they can rely upon professional advisors they reasonably believe to be reliable + competent.
Once advice has been obtained from professional advisors, in the U.S.A. there is no duty to make any further inquiry beyond this point.
A Court will not second guess a business decision if it was:
1️⃣ Informed;
2️⃣ Made in Good Faith;
3️⃣ Without Conflicts of Interest; and
4️⃣ Had a Rational Basis.
So, whether Directors' will be held liable for breach of their duty of care depend on the facts …
✅ Was the Board reasonably informed?
✅ Did it do appropriate homework before making the decision (analyze information, deliberate)?
✅ Did it act in good faith, free of self-interest, and with the belief that the decision was in the best interest of the Corporation?
If so, the Directors' are not liable, despite the poor substantive outcome of the decision, because the BJR recognizes that a Director is not a guarantor of success.
Reliance on others: It is not unreasonable for a director to rely on information from officers, legal counsel, committees, etc. the director reasonably believes to be reliable and competent.
The article Directors duties: care & diligence, business judgment rule, good faith, use of position & information by the Commercial Law Barrister: Jonathan Wilkinson provides a useful summary of the Directors' Duties required under the Corporations Act in Australia as set out by Elliot J. in the recent Victorian Supreme Court decision United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347.
Source: For a more detailed discussion, please read our blog article.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
A Director ID is a unique identifier that a director will apply for once and keep forever.
The intended purpose of Director ID's is to help prevent the use of false or fraudulent director identities.
All Directors + Alternate Directors (acting in that capacity regardless of the title used for example: Power of Attorney) of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation will need a Director ID.
ASIC is responsible for enforcing Director ID offences set out in the Corporations Act (Cth) 2001.
It is a criminal offence if Directors or Alternate Directors do not apply on time and penalties may apply.
When you MUST APPLY for your Director ID depends on when you first become a Director or Alternate Director/Power of Attorney to act in the capacity of a Director.
For Directors + Alternate Directors/Power of Attorney of companies regulated by ASIC and registered under the Corporations Act 2001:
✅ Intending new Directors or Alternate Directors/Powers of Attorney must apply before being appointed.
✅ Directors or Alternate Directors/Powers of Attorney appointed on or before 31 October 2021 have until 30 November 2022 to apply.
✅ New Directors or Alternate Directors/Powers of Attorney appointed for the first time between 1 November 2021 and 4 April 2022 had 28 days from their appointment to apply.
Directors (and possibly Alternate Directors/Powers of Attorney) of companies regulated by the Office of the Registrar of Indigenous Corporations and registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 have a different time frame in which to apply. If this applies to you, please visit the ABRS website for more information on when you need to apply.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
