| |
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| |
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| |
|
Electronic means and
modifications relating to constitution or rules
|
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|
|
| |
Application
|
|
|
| |
9
|
Sections 10 and 13 apply for relevant period
|
|
|
| |
Each of sections 10
and 13 applies in relation to an entity—
|
|
|
| |
|
(a)
|
until the close of 30
November 2020; and
|
|
|
| |
|
(b)
|
if its application is
extended by an Order in Council made under section 42 in relation
to the type of entity, for the further period.
|
|
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| |
|
Electronic means
|
|
|
| |
10
|
When
electronic means permitted despite constitution or rules
|
|
|
| |
(1)
|
In the relevant period, this section applies
in relation to an entity—
|
|
|
| |
|
(a)
|
if,—
|
|
|
| |
|
|
(i) because of a restriction or requirement in
the entity’s constitution or rules, a matter in subsection (2) may not be
done by electronic means, or a majority of the entity’s governing officers,
in good faith, believe that there is uncertainty as to whether the matter may
be done by electronic means; or
|
|
|
| |
|
|
(ii) the entity’s constitution or rules are
silent about whether a matter in subsection (2) may be done by electronic
means; and
|
|
|
| |
|
(b)
|
if a majority of the
entity’s governing officers believe, in good faith, that because of the
outbreak of COVID-19 it is not reasonably practicable to do the matter by
non-electronic means.
|
|
|
| |
(2)
|
The matters are—
|
|
|
| |
|
(a)
|
having or recording
information in writing:
|
|
|
| |
|
(b)
|
calling or holding
meetings, including for the purpose of establishing a quorum:
|
|
|
| |
|
(c)
|
voting:
|
|
|
| |
|
(d)
|
giving or receiving
information:
|
|
|
| |
|
(e)
|
making or keeping new
records:
|
|
|
| |
|
(f)
|
providing access to
records or information held by or on behalf of the entity:
|
|
|
| |
|
(g)
|
signing any
instrument:
|
|
|
| |
|
(h)
|
retaining any
information.
|
|
|
| |
(3)
|
If this section applies,—
|
|
|
| |
|
(a)
|
the matter may be
done, wholly or partly, by electronic means; and
|
|
|
| |
|
(b)
|
if done by electronic
means, the matter has legal effect to the same extent as if it had been done
by non-electronic means in accordance with the constitution or rules.
|
|
|
| |
(4)
|
However, subsection
(3)—
|
|
|
| |
|
(a)
|
is subject to the
conditions in section 12 being, or having been, complied with as
required by that section; and
|
|
|
| |
|
(b)
|
in the case of
voting, is subject also to section 11.
|
|
|
| |
(5)
|
In order to do the
matter by electronic means, it is not necessary to comply with a
paper-based format requirement within the meaning of section 225 of the
Contract and Commercial Law Act 2017.
|
|
|
| |
(6)
|
This section does not
affect any legal requirement to the extent that the requirement relates to
the content of information.
|
|
|
| |
(7)
|
Nothing in this
section prevents section 13 from being used to make modifica tions to
allow things to be done by electronic means.
|
|
|
| |
11
|
Electronic
voting
|
|
|
| |
(1)
|
No vote may be taken
or received (wholly or partly) by electronic means in reliance on
section 10, and no other part of a voting process may be done
in reliance on that section, unless a majority of the entity’s governing
officers (or the entity’s governing officer, if it has only 1)—
|
|
|
| |
|
(a)
|
believe, on
reasonable grounds, that the provisions in the entity’s constitution or rules
that relate to the integrity of the voting process—
|
|
|
| |
|
|
(i) are or will be substantively complied
with; and
|
|
|
| |
|
|
(ii) will not be substantively compromised as a
consequence of the vote; and
|
|
|
| |
|
(b)
|
sign a certificate
certifying as to their beliefs under paragraph (a) and recording the reasons
why, and keep that certificate with the entity’s records.
|
|
|
| |
|
2.
|
In forming their
beliefs under subsection (1)(a), the matters to which the governing officers
must have regard include—
|
|
|
| |
|
(a)
|
whether, if a vote or
other part of a voting process is done (wholly or partly) by electronic
means, all persons who are entitled to vote will have a reasonable
opportunity to vote and participate in the process; and
|
|
|
| |
|
(b)
|
whether any person
who is entitled to vote may suffer a material detriment.
|
|
|
| |
12
|
Conditions
|
|
|
| |
(1)
|
The conditions that
permit a matter to be done in reliance on section 10 are as follows:
|
|
|
| |
|
(a)
|
to the extent that
doing the matter by electronic means relates to—
|
|
|
| |
|
|
(i) having information in electronic form
(instead of in writing), section 222 of the Contract and Commercial Law Act
2017 must be complied with:
|
|
|
| |
|
|
(ii) recording information in electronic form
(instead of in writing), section 223 of that Act must be complied with:
|
|
|
| |
|
|
(iii) giving
information in electronic form (instead of giving it in
writing), section 224 of that Act must be complied with:
|
|
|
| |
|
|
(iv) an electronic
signature (instead of a non-electronic signature), section 226 or 227 of
that Act must be complied with:
|
|
|
| |
|
|
(v) retaining an
electronic form of information (instead of retaining the information in
paper or any other non-electronic form), section 229 of that Act
must be complied with:
|
|
|
| |
|
|
(vi) providing or
producing information in electronic form (instead of providing or producing
the information in paper or any other non electronic form), section 232
of that Act must be complied with:
|
|
|
| |
|
|
(vii) providing
access to information in electronic form (instead of providing access to the
information in paper or any other non-elec tronic form), section 234 of
that Act must be complied with; and
|
|
|
| |
|
(b)
|
the entity must keep
a record of—
|
|
|
| |
|
|
(i) the electronic communications used to do
the matter (if any); and
|
|
|
| |
|
|
(ii) the reasons for the belief of the majority
of its governing officers referred to in section 10(1)(b) (and section
10(1)(a), if relevant); and
|
|
|
| |
|
(c)
|
the entity must make
reasonable efforts to notify all members and gov erning officers of the
matter for which section 10 has been, or will be, relied on; and
|
|
|
| |
|
(d)
|
the entity must give
to the responsible Registrar or agency a written notice that—
|
|
|
| |
|
|
(i) identifies the matter for which section 10
has been, or will be, relied on; and
|
|
|
| |
|
|
(ii) contains, or is accompanied by, a copy of
the record referred to in paragraph (b)(ii).
|
|
|
| |
(2)
|
For the purposes of
meeting any conditions in subsection (1)(a) to (c), an entity may treat a
person as having consented to use, provide, accept, or receive information
and electronic signatures by email if—
|
|
|
| |
|
(a)
|
the person has
previously notified the entity of an electronic address that the person uses;
and
|
|
|
| |
|
(b)
|
the entity has no
reason to believe that the address is incorrect; and
|
|
|
| |
|
(c)
|
the entity believes,
on reasonable grounds, that the use of email to give the information or
signature will not materially disadvantage the person; and
|
|
|
| |
|
(d)
|
the person has not
expressly told the entity that the person wants to use, provide, accept, or
receive the particular information or signature by some means other than by
email.
|
|
|
| |
(3)
|
If subsection (1)(c)
or (d) is not complied with before the matter is done, it must be complied
with as soon as reasonably practicable after the matter is done.
|
|
|
| |
(4)
|
If there is more than
1 responsible Registrar or agency, the entity must give the notice under
subsection (1)(d) to each of them.
|
|
|
| |
(5)
|
Subsection (1)(d)
does not apply to a firm (within the meaning of the Partner ship Law Act
2019) or to a post-settlement governance entity of a type not listed in
section 4(1).
|
|
|
| |
Modifications to
constitution or rules
|
|
|
| |
13
|
Process for modifying certain requirements
or restrictions in constitution or rules
|
|
|
| |
(1)
|
In the relevant
period, this section applies to an entity if—
|
|
|
| |
|
(a)
|
the entity’s
constitution or rules contain a provision that (directly or indirectly)—
|
|
|
| |
|
|
(i) requires a person to comply with a
requirement; or
|
|
|
| |
|
|
(ii) restricts the
manner or form in which a person may exercise a power or right, or perform a
function, that the person wishes to exercise or perform; and
|
|
|
| |
|
(b)
|
in the case of
paragraph (a)(i), the time for complying with the requirement ends during the
period that starts on 21 March 2020 and ends when the relevant period ends;
and
|
|
|
| |
|
(c)
|
in the case of
paragraph (a)(ii), the time at which the person wishes to exercise or perform
the power, right, or function is during the period that starts on 21 March
2020 and ends when the relevant period ends.
|
|
|
| |
(2)
|
The entity may, by a
notice in writing that is signed by the majority of its governing officers
(or signed by its governing officer if it has only 1), modify the requirement
or restriction if—
|
|
|
| |
|
(a)
|
the modification
relates to a matter in section 14 and does not relate to a matter in
section 15; and
|
|
|
| |
|
(b)
|
the modification is
not inconsistent with any enactment or rule of law or equity; and
|
|
|
| |
|
(c)
|
a majority of the
entity’s governing officers believe, on reasonable grounds, that—
|
|
|
| |
|
|
(i) because of the outbreak of COVID-19, it is
not, or is not likely to be, reasonably practicable for the person referred
to in subsection (1) to comply (or comply fully) with the requirement or
restriction; and
|
|
|
| |
|
|
(ii) the modification goes no further than is,
or is likely to be, reasonably necessary in the circumstances; and
|
|
|
| |
|
(d)
|
the modification—
|
|
|
| |
|
|
(i) complies with section 17 (which relates to
expiry); and
|
|
|
| |
|
|
(ii) if it relates to dispute resolution or
disciplinary proceedings, complies with the principles of natural justice;
and
|
|
|
| |
|
(e)
|
the majority of the
entity’s governing officers believe, on reasonable grounds, that the
modification is not oppressive, unfairly discriminatory, or unfairly
prejudicial to any member, creditor, or other person; and
|
|
|
| |
|
(f)
|
if the modification
relates to a method or form of voting, the majority of the entity’s governing
officers believe, on reasonable grounds, that the requirements or
restrictions in the entity’s constitution or rules that relate to the
integrity of the voting process are substantively maintained or enhanced
(and section 11(2) applies to the forming of this belief with
all necessary modifications); and
|
|
|
| |
|
(g)
|
the entity complies
with the conditions in section 18.
|
|
|
| |
(3)
|
A modification made
by an entity in accordance with this section has legal effect to the same
extent as if it were made in accordance with the constitution or rules (and
the procedures for amending the constitution or rules in any enactment).
|
|
|
| |
(4)
|
A modification does
not actually amend the text of the constitution or rules (but has legal
effect under subsection (3) as if the text were amended).
|
|
|
| |
(5)
|
To the extent that
the modification is inconsistent with any enactment or rule of law or equity,
the modification is of no effect.
|
|
|
| |
(6)
|
See section 16
in relation to retrospective modifications.
|
|
|
| |
(7)
|
For the purposes of
subsections (2)(b) and (5), provisions in other enactments (and any rules of
law or equity) that relate to amending, or require compliance with,
constitutions or rules are disregarded.
|
|
|
| |
14
|
Matters that may be
modified under section 13
|
|
|
| |
(1)
|
Section 13 allows modifications
relating to the following:
|
|
|
| |
|
(a)
|
calling or holding
meetings (including procedures at meetings):
|
|
|
| |
|
(b)
|
a method or form of
voting:
|
|
|
| |
|
(c)
|
giving or receiving
information:
|
|
|
| |
|
(d)
|
making or keeping new
records:
|
|
|
| |
|
(e)
|
a method or form of
dispute resolution:
|
|
|
| |
|
(f)
|
method or form of
disciplinary procedure:
|
|
|
| |
|
(g)
|
a waiver, suspension,
deferral, or reduction of fees or other amounts payable by members of the
entity to the entity:
|
|
|
| |
|
(h)
|
a deferral of
auditing, assurance, or financial reporting or review requirements:
|
|
|
| |
|
(i)
|
use of electronic
means to do any matter listed in section 10(2):
|
|
|
| |
|
(j)
|
other procedural or
administrative processes.
|
|
|
| |
(2)
|
|
However, the list in
subsection (1) is subject to regulations made under section 41(1)(a)(i)
or (iii) (which may restrict, or add to, the list).
|
|
|
| |
(3)
|
|
If there is any
inconsistency between this section and section 15(a) to (j),
that section prevails.
|
|
|
| |
15
|
Matters that may not
be modified under section 13
|
|
|
| |
|
Section 13 does
not allow modifications that relate to the following:
|
|
|
| |
|
(a)
|
the purpose or
objects of the entity:
|
|
|
| |
|
(b)
|
the powers of the
entity (other than a procedural or an administrative power):
|
|
|
| |
|
(c)
|
the sale, transfer,
or other disposition of real or personal property:
|
|
|
| |
|
(d)
|
voting rights or
rights to a dividend or other distribution:
|
|
|
| |
|
(e)
|
the number, or need,
for a quorum:
|
|
|
| |
|
(f)
|
rights of access to
courts, tribunals, or arbitral tribunals:
|
|
|
| |
|
(g)
|
the duties of the
governing body or governing officers (other than a procedural or an
administrative duty):
|
|
|
| |
|
(h)
|
fees or other
payments (other than a waiver, suspension, deferral, or reduction of fees or
other amounts payable by members of the entity to the entity):
|
|
|
| |
|
(i)
|
an alteration or
addition made to the constitution or rules by an order of a court:
|
|
|
| |
|
(j)
|
any matter if the
modification to that matter has a material detrimental effect (direct or
indirect) on the substantive rights or powers of any creditor or other
person:
|
|
|
| |
|
(k)
|
any matter that is
prescribed by regulations made under section 41(1)(a)(ii) :
|
|
|
| |
|
(l)
|
any other matter that
is not listed in section 14.
|
|
|
| |
16
|
Retrospective modifications
|
|
|
| |
(1)
|
This section applies to the extent that a
modification made under section 13 relates to either of the following:
|
|
|
| |
|
(a)
|
omitting to do a
required act by a due date that is before the date on which the modification
is made:
|
|
|
| |
|
(b)
|
an act done in an
attempt to do an act required to be done by a due date that is before the
date on which the modification is made.
|
|
|
| |
(2)
|
The modification is
treated as validly made on or immediately before the due date if—
|
|
|
| |
|
(a)
|
the due date is no
earlier than 21 March 2020; and
|
|
|
| |
|
(b)
|
the modification is
made by the entity no later than 3 months after the commencement date.
|
|
|
| |
(3)
|
To the extent that the modification relates
to a due date earlier than 21 March 2020, the modification is of no effect.
|
|
|
| |
17
|
Modifications must
expire
|
|
|
| |
Modifications made in initial period
|
|
|
| |
(1)
|
A modification made
under section 13 in the initial period must have an express expiry
date that is no later than the end of the initial period.
|
|
|
| |
(2)
|
However, subsection
(3) applies if—
|
|
|
| |
|
(a)
|
a modification made
by an entity is in force immediately before the end of the initial period;
and
|
|
|
| |
|
(b)
|
an Order in Council
is made under section 42(1)(b) for a further period in relation to
the type of entity.
|
|
|
|
| |
(3)
|
The modification does
not expire at the end of the initial period but is treated as having an
expiry date that is the end of the further period.
|
|
|
| |
(4)
|
Subsection (3) does
not apply if the modification expressly states that it will not apply in any
further period.
|
|
|
| |
Modifications made in further period
|
|
|
| |
(5)
|
A modification made
by an entity under section 13 in the further period (if any) must
have an express expiry date that is no later than the end of the further
period.
|
|
|
| |
18
|
Conditions
|
|
|
| |
(1)
|
An entity that relies on section 13 must
do all of the following:
|
|
|
| |
|
(a)
|
keep a written record of—
|
|
|
|
| |
|
|
(i) the notice of the modification; and
|
|
|
| |
|
|
(ii) its reasons as to how the requirements
of section 13 were satisfied in respect of the modification; and
|
|
|
| |
|
|
(iii) the reasons for the beliefs of the majority
of its governing officers referred to in section 13(2)(c), (e), and
(f); and
|
|
|
| |
|
(b)
|
as soon as
practicable after making the modification, make reasonable efforts to notify
all members and governing officers of the entity of the modification; and
|
|
|
| |
|
(c)
|
as soon as
practicable after making the modification, give to the responsible Registrar
or agency a written notice that—
|
|
|
| |
|
|
(i) states that the entity is relying
on section 13 of this Act; and
|
|
|
| |
|
|
(ii) contains, or is accompanied by, a copy of
the written record referred to in paragraph (a); and
|
|
|
| |
|
|
(iii) contains, or is accompanied by, a
certificate by a governing officer of the entity certifying that, in making
the modification, all requirements of this Act were complied with.
|
|
|
| |
(2)
|
If there is more than
1 responsible Registrar or agency, the entity must give the notice under
subsection (1)(c) to each of them.
|
|
|
| |
(3)
|
Subsection (1)(c)
does not apply to a firm (within the meaning of the Partnership Law Act
2019) or to a post-settlement governance entity of a type not listed
in section 4(1).
|
|
|
| |
19
|
Electronic means
permitted for doing certain things to make modification
|
|
|
|
| |
(1)
|
This section applies if,—
|
|
|
| |
|
(a)
|
because of a
restriction or requirement in an entity’s constitution or rules, 1 or more
matters in subsection (2) may not be done by electronic means, or a majority
of an entity’s governing officers, in good faith, believe that there is
uncertainty as to whether the matter may be done by electronic means; and
|
|
|
| |
|
(b)
|
the majority of the
entity’s governing officers believe, in good faith, that it is not reasonably
practicable to do the matter by non-electronic means.
|
|
|
| |
(2)
|
The matters relate to a modification
under section 13 and are—
|
|
|
| |
|
(a)
|
making and signing
the written notice of modification:
|
|
|
| |
|
(b)
|
recording the beliefs
under section 13(2)(c), (e), and (f):
|
|
|
| |
|
(c)
|
compliance with any
condition in section 18.
|
|
|
| |
(3)
|
If this section applies,—
|
|
|
| |
|
(a)
|
the matter may be
done, wholly or partly, by electronic means; and
|
|
|
| |
|
(b)
|
if done by electronic
means, the matter has legal effect to the same extent as if it had been done
by non-electronic means in accordance with the constitution or rules.
|
|
|
| |
(4)
|
However, subsection
(3) is subject to the conditions in section 12(1)(a) and
(b)(i) being complied with (and section 12 applies for this purpose
with the necessary modifications).
|
|
|
| |
(5)
|
In
order to do the matter by electronic means, it is not necessary to comply
with a paper-based format requirement within the meaning of section
225 of the Contract and Commercial Law Act 2017.
|
|
|
| |
(6)
|
This section does not
affect any legal requirement to the extent that the requirement relates to
the content of information.
|
|
|
| |
20
|
Modified method or
form of voting may not be used for certain matters
|
|
|
| |
(1)
|
A vote may not be
taken or received (wholly or partly) in reliance on a modification made
under section 13 to a method or form of voting if the vote relates
to any of the following matters (and, to the extent they are purportedly
voted on in reliance on the modification, the vote is of no effect):
|
|
|
| |
|
(a)
|
an amendment to an
entity’s constitution or rules (other than an amendment described in
subsection (2)); or
|
|
|
| |
|
(b)
|
any matter listed
in section 15.
|
|
|
| |
(2)
|
Subsection (1)(a)
does not prevent a vote being taken or received (wholly or partly) in
reliance on a modification made under section 13 to a method or
form of voting if the amendment expires in accordance with section
17 (which applies with all necessary modifications as if the amendment
were a modification referred to in that section).
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21
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Variation and revocation
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(1)
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An entity that
desires to vary a modification made under section 13 may do so only
under that section (with this Part applying with all necessary
modifications).
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(2)
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A modification made
by an entity under section 13 may be revoked by a notice in writing
that is signed by the majority of the entity’s governing officers (or signed
by its governing officer, if it has only 1).
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(3)
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An entity must comply
with section 18 (with all necessary modifications), other than
section 18(1)(a)(ii) and (iii) and (c)(i), in relation to a revocation.
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Records
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22
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Responsible Registrar
or agency’s obligations to register or publish
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(1)
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This section applies
when a responsible Registrar or agency receives a written notice under this
Part.
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(2)
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A Registrar receiving the notice—
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(a)
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must arrange for
particulars about the notice (including particulars about information
contained in, or accompanying, the notice) to be registered on the relevant
register; and
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(b)
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may otherwise make
the particulars available to the public in any way the Registrar thinks fit
(for example, by publishing them on an Internet site).
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(3)
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An agency receiving
the notice must make particulars about the notice (including particulars
about information contained in, or accompanying, the notice) available to the
public, but may do so in any way the agency thinks fit (for example, by
publishing them on an Internet site).
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23
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Entity’s obligations to keep records
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On and from the end
of the relevant period, the obligations that an entity has under other
enactments in relation to the keeping of entity records apply to all written
records and electronic communications made by or under this Part.
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There are Part 3 - Exemption powers and power to grant relief and Part 4 - Miscellaneous that are beyond the
scope of this App. In the case of Part 3,
consideration of Exemptions from statutory compliance requires
specialist legal advice.
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Part 3
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Part 4
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