FAQs – Virtual meetings for companies and registered schemes held between 1 April and 30 June 2022

From 1 April 2022, permanent amendments to the Corporations Act apply to permit hybrid meetings, and, if expressly required or permitted under the entity’s constitution, virtual-only meetings.

Additionally, ASIC has provided temporary relief to allow virtual-only meetings, even if the entity’s constitution does not expressly require or permit virtual-only meetings, subject to conditions.

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. Permanent amendments to the Corporations Act allow hybrid meetings to be held for all companies and registered schemes, effective 1 April 2022 – 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) (as it applies from 1 April 2022).

3. Can I hold a virtual-only meeting?

Yes, but only if either of the following apply:

  • your entity’s constitution expressly requires or permits virtual-only meetings (and for a registered scheme – the relevant provisions were included at the time the scheme was established or by special resolution), or
  • your entity is able to rely on ASIC Corporations (Virtual-only Meetings) Instrument 2022/129 as:
    • it is holding its meeting between 1 April 2022 and 31 May 2022 (for listed companies and all registered schemes) or 1 April 2022 and 30 June 2022 (for unlisted companies), and
    • before relying on the relief, the board of directors of the company or responsible entity of the registered scheme has passed a resolution to the effect that, in the opinion of the directors voting for the resolution, it would be unreasonable for the company or registered scheme to hold a meeting of its members, wholly or partially, at one or more physical venues due to the impact of the COVID-19 pandemic (COVID-19 Resolution).

Permanent amendments to the Corporations Act under the Corporations Amendment (Meetings and Documents) Act 2022, effective from 1 April 2022, allow 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).

Additionally, ASIC has provided temporary relief under ASIC Corporations (Virtual-only Meetings) Instrument 2022/129 to allow additional time for companies and registered schemes to hold meetings of their members using virtual technology only, even if not expressly required or permitted by the entity’s constitution, subject to the condition that the board of directors of the company or responsible entity of the registered scheme passes a COVID-19 Resolution.

The relief applies to address the current COVID-19 situation only and does not apply to companies or registered schemes that intend to hold virtual-only meetings outside the time periods specified in the instrument.

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

No. Hybrid meetings are now permitted following permanent amendments to the Corporations Act from 1 April 2022 – 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 9.

If your entity’s constitution expressly requires or permits virtual-only meetings, there is no need to apply to ASIC to rely on the changes under the Corporations Amendment (Meetings and Documents) Act 2022, effective from 1 April 2022.

Similarly, no application is required to access the relief provided under ASIC Corporations (Virtual-only Meetings) Instrument 2022/129. However, the relief is subject to certain conditions – see question 3.

You should seek legal advice if you are unsure of these requirements. The Explanatory Memorandum related to the Corporations Amendment (Meetings and Documents) Act 2022 and Explanatory Statement for the ASIC Corporations (Virtual-only Meetings) Instrument 2022/129 may also help entities to interpret these requirements.

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

No. Under section 249R(c) (as it applies from 1 April 2022) a company is only able to hold a meeting of its members solely using virtual meeting technology if this is expressly required or permitted by the company’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).

6. My entity’s constitution expressly permits virtual-only meetings. Do I need to pass a COVID-19 Resolution?

It is not a requirement of the Corporations Act to pass a COVID-19 Resolution in order to hold a virtual-only meeting when relying on section 249R(c) or section 252P(c) (as they apply from 1 April 2022). However, the directors of a company or of the responsible entity of a managed investment scheme remain accountable to members for the chosen format and conduct of meetings.

7. Can I rely on the temporary relief in ASIC Corporations (Virtual-only Meetings) Instrument 2022/129 to hold a virtual meeting even if my entity’s constitution does not expressly allow virtual meetings?

Yes. To address the current COVID-19 situation, ASIC has provided temporary relief under section 253TA to allow virtual-only meetings to be held up to 31 May 2022 for listed companies and all registered schemes, and up to 30 June 2022 for unlisted companies, even if an entity’s constitution does not expressly require or permit virtual-only meetings.

8. Can I send meeting materials by email or do I need to post meeting materials?

Yes, dispatch via electronic communications is permitted. However, the particular provisions that apply will depend on when you send the meeting materials.

For dispatch on or after 1 April 2022 of documents relating to a meeting of members, permanent amendments to the Corporations Act under the Corporations Amendment (Meetings and Documents) Act 2022 facilitate 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 usable for subsequent reference – see section 110D (as applicable from 1 April 2022).

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 and make a notice readily available on its website – see section 110K.

The permanent amendments only apply to documents sent on or after 1 April 2022. If you are dispatching material before that date see our FAQ on meetings prior to 31 March 2022.

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

9. 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 10 and 11.

Broadly, for all 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 10 and 11 below. These requirements apply to all virtual-only meetings, irrespective of whether the meeting is held in reliance on express provisions in the entity’s constitution or ASIC’s relief.

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

10. 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.

11. 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.

12. 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 9–11.

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).

13. 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).

14. Are there any other changes arising from the Corporations Amendment (Meetings and Documents) Act 2022 that I should be aware of?

Changes introduced by the Corporations Amendment (Meetings and Documents) Act 2022 mean that 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 a poll is demanded – see section 250JA and section 253J(1).

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.

Companies and responsible entities should familiarise themselves with these and any other changes that may affect how you call or hold meetings. For full details see the Corporations Amendment (Meetings and Documents) Act and Explanatory Memorandum.

15. Do I have additional time to hold my annual general meeting (AGM)?

Yes, for some unlisted companies. ASIC has issued a legislative instrument under section 253T to extend the time for unlisted public companies with financial year-end dates between 24 December 2021 and 7 January 2022 to hold their AGM. The extension is for up to one month.

What's new

ASIC calls on Australian CEOs to review whistleblower policies

13 October 2021

ASIC has written to CEOs of public companies, large proprietary companies and trustees of registrable superannuation entities urging them to review their whistleblower policies to ensure they comply with the law.

ASIC to further extend financial reporting deadlines for listed and unlisted entities and amends ‘no action’ position for AGMs

13 May 2020

ASIC will extend the deadline for both listed and unlisted entities to lodge financial reports under Chapters 2M and 7 of the Corporations Act by one month for certain balance dates up to and including 7 July 2020 balance dates.

Reminders on director trading during COVID-19

7 May 2020

Considerations for directors (including directors of the responsible entity of a listed managed investment scheme) regarding the acquisition and disposal of securities and other financial products issued by their listed entity.

ASIC guidelines for investor meetings using virtual technology

6 May 2020

On 6 May 2020, temporary modifications to the Corporations Act under the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Determination) took effect. Read more.

Directors duties in the context of COVID-19

20 April 2020

The current evolving circumstances surrounding COVID-19 present many challenges to companies, boards, management and their stakeholders. Read this article by Commissioner John Price.

Details of changes to ASIC regulatory work and priorities in light of COVID-19

14 April 2020

ASIC’s Close and Continuous Monitoring program has been suspended. However, ASIC will continue to monitor firms remotely, including through close working and information sharing arrangements with APRA.

Last updated: 21/03/2022 03:57