if authorised to do so under this section.
(2) A person may act as a director of a company during the period that:
- (a)
- starts on the day on which they turn 72; and
- (b)
- ends at the conclusion of the AGM beginning next after that day.
(3) The office of a director of a public company, or of a subsidiary of a
public company, becomes vacant at the conclusion of the AGM of the public
company, or the subsidiary, beginning next after the director turns 72.
(4) If a proprietary company is a subsidiary of a public company:
- (a)
- subsection (3) does not apply to it; and
- (b)
- a person may continue to act as a director of the proprietary company
until the next AGM of the public company after the person turns 72; and
- (c)
- the person's office of director becomes vacant at the end of that meeting.
- Note: Proprietary companies do not need to hold annual general meetings (see
section 250N).
(5) An act done by a person as a director is valid even if it is afterwards
discovered that they had turned 72 at the time when they were appointed or
that their appointment had terminated under subsection (3) or (4).
(6) If the office of a director has become vacant under subsection (3) or
(4), no provision for the automatic re-appointment of retiring directors in
default of another appointment applies in relation to that director.
(7) If a vacancy created under subsection (3) or (4) is not filled at the
meeting at which the office became vacant, the office may be filled as a
casual vacancy.
(8) Subject to subsections (9) and (10), a person who has turned
72 may by special resolution be appointed or re-appointed as a director
of that company to hold office until the conclusion of the company's next AGM
if:
- (a)
- the resolution states the person's age; and
- (b)
- the notice of meeting states that the person is a candidate for election
who has turned 72 and states the person's age.
(9) If the company is a subsidiary of a public company, the appointment or
re-appointment referred to in subsection (8) does not have effect unless:
- (a)
- the person appointed or re-appointed is a director of the public company;
or
- (b)
- the appointment or re-appointment of the person as a director of the
company has been approved by a special resolution of the public company and
the notice of meeting states that the person is a candidate for election as a
director of the company who has turned 72 and states the person's age.
(10) If the subsidiary is a proprietary company:
- (a)
- the person may be
appointed or re-appointed as a director of the subsidiary until the end of the
next AGM of the holding company; and
- (b)
- the appointment does not need a resolution under subsection (8); and
- (c)
- the appointment must satisfy either paragraph (9)(a) or (b).
(11) If:
- (a)
- the constitution of a company limited by guarantee provides for
the holding of postal ballots for the election of a director or directors; and
- (b)
- a postal ballot for the election of a director or directors is held and in
the ballot:
- (i)
- the members entitled to vote have been given notice in writing by the
company stating that a candidate for election has turned 72 and stating the
age of the candidate; and
- (ii)
- that candidate is elected by a majority of not less than 75% of the
members who, being entitled to vote, vote in the ballot;
that candidate may be appointed or re-appointed as a director to hold office
until the conclusion of the next AGM of the company.
(12) If:
- (a)
- the constitution of a company limited by guarantee provides for
the election or appointment of a director or directors otherwise than by
members at a general meeting or by postal ballot of members; and
- (b)
- ASIC declares in writing that this section does not apply to the company
or its directors;
then, subject to the conditions (if any) that ASIC specifies in the
declaration, this section does not so apply.
(13) A vacancy in the office of a director occurring under subsection (3)
or (4) is not to be taken into account in determining when other directors are
to retire.
(14) Nothing in this section limits, or affects the operation of, any
provision of a company's constitution that prevents any person from being
appointed as a director or requiring any director to vacate their office at
any age less than 72 years.