The Office of the Director of Corporate Enforcement published information briefings on various Company Law matters in November 2011, one of which covers the principal duties and powers of a Company Secretary under the Companies Act 1963-2009.
The following areas are covered in the briefing:
- Qualifications of a Company Secretary;
- Appointment of a Company Secretary;
- Duties of a Company Secretary;
- Powers of a Company Secretary; and
- Penalties under the Companies Acts.
It is noted in this information briefing that the Director of Corporate Enforcement considers incorporation a privilege with corresponding duties and responsibilities. Accordingly, the various briefings have been prepared with a non-professional audience in mind to ensure the information is easily understandable.
The following is a summary of the duties and powers of a Company Secretary as outlined in the above mentioned briefing.
The majority of a Company Secretary’s statutory duties are set out in the Companies Acts and include the following:
- Signing the Annual Return;
- Certifying the Financial Statements attached to the annual return;
- Making a statement of affairs in a winding up or receivership;
- Signing relevant application / statutory declaration when re-registering a company as a different type of company; and
- Making a statutory declaration required for a public limited company before it may carry on business.
A Company Secretary, as an authorised officer of a Company, can also sign tax registration forms and tax returns on behalf of the company.
The taxes acts hold the Company Secretary as one of the responsible officer’s in relation to a company’s tax affairs and failure by the company to comply with the requirements under the taxes acts may lead to additional penalties being imposed on the Company Secretary.
Duty of Disclosure
The Company Secretary must disclose certain information for inclusion in the Company Register, including:
- Registered office address (if the secretary is a company itself);
- Interests held in shares and debentures of the company; and
- Details of any shares or debentures purchased or sold in the company, its holding company, any subsidiary or any subsidiary of its holding company.
Duty To Exercise Due Care, Skill and Diligence
The Company Secretary must exercise due care, skill and diligence that can be reasonably expected from a person with their level of knowledge and experience.
Depending on the size of the company, a Company Secretary will have administrative duties which may include the following:
- Keeping minutes of Board and General Meetings;
- Maintaining the company registers;
- Filing documents with the Registrar of Companies within the specified time frame;
- Communicating with the members of the company;
- Providing legal and administrative support to directors;
- Administering share transfers; and
- Ensuring the company letterhead bears the appropriate details.
A Company Secretary has the authority to make contracts in relation to the day-to-day administration of the Company. Outside this remit, the Company Secretary must be authorised by the Directors to enter into contacts of another nature.