1. What is a virtual-only meeting and how does it differ from a hybrid meeting?

In this FAQ, we refer to two types of virtual meeting held by companies and registered schemes: hybrid meetings and virtual-only meetings.

Both use virtual technology to facilitate the meeting. A virtual-only meeting is held entirely using virtual meeting technology – so this is the only way to participate in the meeting. At a hybrid meeting there is also one or more physical places at which the meeting is held – so members can choose to attend in person or participate remotely via virtual technology.

In some cases, virtual meeting technology may also be used to link two meeting venues together.

2. Can I hold a hybrid meeting?

Yes. The Corporations Act allows hybrid meetings to be held for all companies and registered schemes – see section 249R(b) and section 252P(b). Entities can hold hybrid meetings even if their constitutions do not contain provisions specifically facilitating them. Under the Corporations Act, a member who attends the meeting virtually is taken for all purposes to be present at the meeting – see section 249RA(3) and section 252PA(3).

3. Can I hold a virtual-only meeting?

Yes. The Corporations Act allows companies and registered schemes to hold virtual-only meetings if this is expressly required or permitted by the entity’s constitution. For registered schemes, the provisions of the scheme’s constitution that require or permit virtual-only meetings must have been included in the constitution either at the time the scheme was established or by special resolution of scheme members – see section 249R(c) and section 252P(c).

4. Do I need to apply to ASIC to be able to hold a virtual meeting?

No. Hybrid meetings are permitted under the Corporations Act – see section 249R and section 252P. You will need to comply with the requirements in the legislation if you wish to hold a hybrid meeting – see question 10.

If your entity’s constitution expressly requires or permits virtual-only meetings, there is no need to apply to ASIC to hold a virtual-only meeting.

You should seek legal advice if you are unsure of these requirements. The Explanatory Memorandum (PDF 520 KB) related to the Corporations Amendment (Meetings and Documents) Act 2022 may also help entities to interpret these requirements.

5. My entity’s constitution contains provisions directed to facilitating hybrid meetings. Can I rely on these to hold a virtual-only meeting under section 249R(c) or section 252P(c)?

No. Under sections 249R(c) and 252P(c) the entity is only able to hold a meeting of its members solely using virtual meeting technology if this is expressly required or permitted by the entity’s constitution. This means it will need to be clear that the relevant provisions in the constitution are specifically allowing or requiring virtual-only meetings.

If you are unsure you should seek legal advice on whether the terms of your constitution meet the requirements of section 249R(c) and section 252P(c).

6. Can ASIC provide relief for holding virtual-only meetings if it is not expressly required or permitted by the entity’s constitution?

Yes, in limited circumstances. The Corporations Act provides ASIC with powers to temporarily allow an entity to hold a virtual-only meeting, even if the entity’s constitution does not expressly require or permit virtual-only meetings. This power will only be exercised if ASIC considers that it may be unreasonable to expect the entity or a class of entities to hold meetings wholly or partially at one or more physical venues because of a situation that is beyond the entity’s control – see section 253TA.

This power was previously exercised in exceptional circumstances when ASIC granted temporary relief under ASIC Corporations (Virtual-only Meetings) 2022/129. This relief ended on 30 June 2022 – see the Explanatory Statement and 22-035MR for further information.

7. Can I send meeting materials by email?

Yes, dispatch via electronic communications is permitted.

For dispatch of documents relating to a meeting of members, the Corporations Act facilitates companies and responsible entities:

• sending a hard copy, or
• sending the document in electronic form via an electronic communication (e.g. an attachment to an email), or
• sending the recipient sufficient information in physical form to allow the recipient to access the document electronically (e.g. by posting a card with a link to a website where the document can be downloaded), or
• sending the recipient sufficient information in electronic form (via an electronic communication such as email) to allow the recipient to access the document electronically (e.g. by sending an email which includes a link to a website).

Electronic versions of documents can only be sent or made available if, at the time of dispatch, it is reasonable to expect the document would be readily accessible so as to be useable for subsequent reference – see section 110D.

While electronic dispatch is permitted overall, members may make (and change) a standing election for documents to be sent to them in either physical or electronic form (and for some documents, such as annual reports, not to be sent at all). Reasonable steps must be taken to send documents in a manner that accords with each member’s election.

Additionally, members can make ‘ad hoc’ requests to receive a physical or electronic copy of a particular document within a reasonable time either before any dispatch deadline for the meeting materials or after they have been sent (e.g. a recipient may request a hard copy of a meeting document shortly after receiving an electronic copy) – see sections 110C–110J.

A company or responsible entity of a registered scheme must also notify members of their rights to make an election at least once each financial year or make a notice readily available on its website – see section 110K.

You should seek legal advice if you are unsure of these requirements.

8. Can ASIC provide relief if members request to receive meeting materials in hard copy or through electronic means?

Yes, in limited circumstances. The Corporations Act provides ASIC with powers to temporarily relieve an entity from providing documents in physical form. This power will only be exercised if ASIC considers that it may be unreasonable to expect the entity or a class of entities to give the documents in physical form because of a situation that is beyond the entity’s control, and can instead be provided through electronic means.

The Corporations Act also provides ASIC with powers to temporarily allow an entity to provide documents in physical form instead of electronic form, if ASIC considers that it may be unreasonable to expect the entity or a class of entities to give the documents in electronic form because of a situation that is beyond the entity’s control  – see section 1345.

9. What if I need more time to send meeting materials in hard copy?

In limited circumstances, the Corporations Act allows ASIC to temporarily extend the timeframe for entities to provide documents that are required to be provided within a particular time for a specific period. This power will only be exercised if ASIC considers that it may be unreasonable to expect the entity or a class of entities to give the documents within the original time, because of a situation that is beyond the entity’s control – see section 1345.

10. Are there any specific requirements that apply to how I hold a virtual-only or hybrid meeting?

Yes. The Corporations Act specifies particular requirements that entities must comply with if they convene and hold meetings using virtual technology – see questions 11 and 12.

Broadly, for hybrid or virtual-only meetings, entities are required to ensure that they give members entitled to attend the meeting, as a whole, a reasonable opportunity to participate in the meeting. This includes, among other things, holding the meeting at a reasonable time and ensuring any virtual technology, if used, is reasonable. Additionally, entities must allow members who attend the meeting using virtual technology, as a whole, to exercise any rights to ask questions and make comments both orally and in writing – see section 249S and section 252Q and questions 11 and 12 below.

You should seek legal advice if you are unsure of these requirements. Paragraphs 1.81–1.97 in the Explanatory Memorandum (PDF 520 KB) may also help entities to interpret these requirements.

11. Do I need to ensure that members are able to make comments and ask questions in a particular way at a virtual-only or hybrid meeting?

Yes. Where virtual meeting technology is used, members at the meeting, as a whole, must be able to exercise any rights they have to ask questions or make comments orally or in writing.

This means where members generally have a right to ask questions or make comments, the option to put these both orally or in writing at the meeting must be available – see section 249S(7)(b) and section 252Q(7)(b). This would include rights such as those members have at a company’s AGM to ask questions and make comments on the management of the company or (if applicable) the remuneration report or to ask questions of the company’s auditor – see section 250S, section 250SA and section 250T.

12. Do I need to let members attending via virtual technology vote at the meeting?

Members, as a whole, at a hybrid or virtual-only meeting must be given a reasonable opportunity to participate and, in this context, it is a requirement that the virtual meeting technology that is used to hold a hybrid or virtual-only meeting is reasonable. The technology, or mix of technologies, used to facilitate virtual attendance would need to be sufficient to allow members to vote – see paragraph 1.92 of the Explanatory Memorandum (PDF 520 KB).

13. Do I need to use a particular technology or software platform to hold a virtual meeting?

No. The Corporations Act does not specify the use of any particular virtual meeting technology. It requires that whatever technology is used is reasonable and ensures members as a whole have a reasonable opportunity to participate – see questions 10–12.

For example, the technology used must facilitate the right of members, as a whole, to ask questions and make comments orally and in writing. However, the Corporations Act does not prescribe any particular method for doing so via technology. Depending on the scale of the company, this may be possible without using any particular software platform or other form of technology specifically directed at virtual meetings. A combination of technologies may also be used (e.g. providing members with a choice of dialling in by phone or using a chat function to ask questions or make comments at the meeting).

14. If I hold a virtual-only or hybrid meeting, where and at what time can I hold it?

If you hold a virtual-only meeting, the meeting is deemed to be held at the time and place of the registered office of the company or responsible entity for the registered scheme – see section 249RA and section 252PA. The meeting will be considered to be held at a reasonable time if it would be reasonable to hold the meeting at the time at the physical venue – see section 249S(3) and section 252Q(3).

If you hold a hybrid meeting, the meeting is deemed to be held at the time and place of the main physical venue – see section 249RA and section 252PA. The meeting will be considered to be held at a reasonable time if it would be reasonable to hold the meeting at the time of the main physical venue as set out in the notice – see section 249S(3) and section 252Q(3).

15. Do I need to let members vote in a particular way?

Yes, for listed companies and listed registered schemes.

A resolution put to the vote at a meeting of members must be decided on a poll (and not a show of hands) if a vote on the resolution is set out in a notice of a meeting or in the case of a listed company a poll is demanded – see section 250JA and section 253J(1A).

Members of a company or registered scheme with at least 5% of the votes that may be cast at a meeting of members may request the company to appoint an independent person to observe and prepare a report on the conduct of the poll – see section 253UB and section 253UD.

16. Do members have any rights in relation to the outcome of a poll?

Yes. Members of a company or registered scheme with at least 5% of the votes that may be cast at a meeting of members may request the company or responsible entity of the registered scheme to appoint an independent person to scrutinise and prepare a report on the outcome of the poll. The request must be in writing, identify the poll to which it relates and be made no later than five business days after the day the meeting was held – see section 253UC and section 253UE.

17. Are there other changes arising from the Corporations Amendment (Meetings and Documents) Act 2022 ?

For full details of changes that may affect how you call or hold meetings see the Corporations Amendment (Meetings and Documents) Act 2022 and Explanatory Memorandum (PDF 520 KB).