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12.What minimum officeholders a company is required to have?
A company is required to have a minimum number of directors and secretaries. The number of minimum officeholders varies according to type of company i.e. Public company or Private Company.
Proprietary companies
s201A(1) of the Corporations Act 2001 states that a proprietary company must have at least 1 director and that director must ordinarily reside in Australia.
s204A(1) of the Corporations Act 2001 states that a proprietary company is not required to have a secretary but, if it does have 1 or more secretaries, at least 1 of them must ordinarily reside in Australia.
Public companies
s201A(2) of the Corporations Act 2001 states that a public company must have at least 3 directors (excluding alternate directors). At least 2 directors must ordinarily reside in Australia.
s204A(2) of the Corporations Act 2001 states that a public company must have at least 1 secretary. At least 1 of them must ordinarily reside in Australia.
What happens if my company does not have enough officers?
You should make every effort to ensure that new officers are appointed as quickly as possible to meet the obligations of the company. There is no period in which the company is permitted to function without the required number of officers.
If the company does not have sufficient officers, it will be in breach of the requirements of the Corporations Act 2001.
The consequences of this can be:
• ASIC can serve a Penalty Notice on the company requiring the company to pay a penalty.
• The company may also be prosecuted for failing in its statutory obligation to have the minimum number of officeholders.