387C. Electronic transmission in accordance with constitution, etc.

Question 1

387C. Electronic transmission in accordance with constitution, etc.

Answer 1

General overview
[387C.01] Section 387C provides for the use of electronic communication of notices of meetings and any accounts, balance sheet, financial statements, report or other documents in accordance with its constitution.

Question 2

Sections 387A and 387B or constitution

Answer 2

[387C.02] The phrase “Notwithstanding sections 387A and 387B, …” in subsection (1) means that s 387C would override these two sections. In other words, a company whose constitution makes provisions for the electronic transmission of notices and documents should follow the constitutional provisions. This appears to contradict ss 387A(6) and 387B(5) which provide that “a company may, notwithstanding any provision to the contrary in its constitution, …”. It is unclear how this apparent contradiction would be resolved. One possible interpretation is to construe ss 387A(6) and 387B(5) as referring to situations where the company’s constitution adopts Article 108 of Table A on physical delivery of notices and documents and does not provide for the electronic communication of notices, documents, etc., whilst s 387C deals with a situation where the company’s constitution makes provision for electronic communication. In summary, s 387C applies when the constitution makes provision for electronic communication but ss 387A and 387B apply otherwise.

Question 3

Express, implied or deemed consent

Answer 3

[387C.03] Express consent by the member to the electronic communication of notices and documents is self-explanatory: s 387C(1). Subsections (2) and (3) define the meaning of implied and deemed consent respectively. The crucial difference between the two is that in implied consent, the member has agreed to receive electronic communication of notices and documents and shall not have a right to elect to receive a physical copy of such notice or document. On the other hand, in deemed consent, the constitution specifies that the member shall be given an opportunity to elect whether he agrees to electronic communications or wants a physical copy; and he failed to make an election within the specified time: s 387C(2) and (3). Put simply, he is deemed to have consented to the electronic communication of notices and documents, etc., by default.

Question 4

Minister may make regulations

Answer 4

[387C.04] Subsection (4)(c) provides, inter alia, that the Minister may make regulations under s 411 to allow a member who has deemed to have consented to electronic communication of notices and documents, etc., under subsection (3) to make a fresh election for a physical copy thereof.