Proxy voting by key management personnel or closely related parties
250BD Proxy voting by key management personnel or closely related parties
A person appointed as a proxy must not vote, on the basis of that appointment, on a resolution connected directly or indirectly with the remuneration of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity if:
the person is either:
a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity; or
a closely related party of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity; and
the appointment does not specify the way the proxy is to vote on the resolution.
Examples of resolutions connected directly or indirectly with the remuneration of a member of the key management personnel for the company or entity include:
resolutions that must be put to the vote under subsection 250R(2) (about a resolution that the remuneration report for a listed company be adopted); and
resolutions that must be put to the vote under subsection 250V(1) (about fresh elections for directors at meetings arising from concerns about remuneration reports); and
resolutions determining directors’ remuneration as mentioned in section 202A; and
resolutions for the purposes of Chapter 2E (about public companies and entities they control giving financial benefits to related parties of public companies) affecting directors’ remuneration.
Subsections 250R(4) and 250V(2) also prevent the person from voting on the resolution if it is a resolution that must be put to the vote under subsection 250R(2) or 250V(1).
Section 224 may also prohibit the person from voting on the resolution if it is a resolution for the purposes of Chapter 2E.
Failure to comply with this subsection is an offence: see subsection 1311(1).
Subsection (1) does not apply if:
the person is the chair of the meeting at which the resolution is voted on; and
the appointment expressly authorises the chair to exercise the proxy even if the resolution is connected directly or indirectly with the remuneration of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity.
A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
ASIC may by writing declare that:
subsection (1) does not apply to a specified resolution; or
subsection (1) does not prevent the casting of a vote, on a specified resolution, by or on behalf of a specified entity;
but may do so only if satisfied that the declaration will not cause unfair prejudice to the interests of any member of the company. The declaration has effect accordingly. The declaration is not a legislative instrument.
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
A vote cast in contravention of subsection (1) is taken not to have been cast. This subsection has effect for the purposes of this Act except subsection (1) and subsections 250R(4) and (7), and section 1311 and Schedule 3 so far as they relate to any of those subsections.
This means the vote is not counted in working out a percentage of votes cast or whether the resolution is passed, and does not affect the validity of the resolution.
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