Recently the Australian Securities and Investments Commission (ASIC) issued a media release (ASIC Media Release 10-85AD) confirming that a listed company can accept proxy votes for general meetings lodged electronically without the need to amend its constitution to expressly permit electronic lodgement.
The Corporations Act 2001(Cth) (Act) specifically allows for the electronic authentication and receipt of documents appointing a proxy to vote for a shareholder at a company meeting even if the company's constitution does not provide for this (see sections 249Y, 250A, 250B and 250BA). As part of its announcement, ASIC explained that relevant provisions of the Act will override any inconsistent provisions in a company's constitution and referred to the decision Bisan Ltd v Cellante and Ors (2002) 43 ACRS 322 to support its view.
Importantly, only listed entities are required to comply with the obligation to include certain details in a notice of meeting, which include the electronic address for receipt of proxy appointments and proxy appointment authorities and other electronic means by which a member can give a company such documents (s 250AB). For this reason, in the unlikely event that an unlisted entity's constitution contains a prohibition which prevents it from specifying any electronic means for receiving proxy documents in a notice of meeting legal advice should be obtained.
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