As official company records of directors’ meetings, courts
place weight on the contents of minutes. Minutes are
increasingly being used in court to prove or disprove that
directors have fulfilled their fiduciary duties. Well-taken
minutes record corporate decisions, highlight director
dissent where appropriate, reduce misunderstandings
as to the board’s intent in a matter and show compliance
with legal duties and responsibilities. The James Hardie
case was a stark reminder of the dangers of not keeping
proper minutes of a directors’ meeting (ASIC v MacDonald
(No 11) (2009) NSWSC 287).
“ As official company records of directors’
meetings, courts place weight on
the contents of minutes. Minutes are
increasingly being used in court to prove
or disprove that directors have fulfilled
their fiduciary duties.”
Who takes the minutes?
In public companies, the company secretary is the usual
minute taker. Most proprietary companies also have
a company secretary (who is the usual minute taker),
although proprietary companies are not required by law
to have a company secretary. If a proprietary company
does not have a company secretary, then it is common
for a person from within the company to be asked to
perform the minute taker function at a meeting. This may
be a director of the company or may be the person that is
generally responsible for maintaining the company registers
and notifying ASIC of basic changes when required.
On occasion, an organisation might prefer to use an
independent minute taker. The organisation may request
that its solicitor or accountant attend the meeting to
perform the minute taker function.
It is not advisable for the CEO or chair to take the minutes,
as they should be participating in the meeting rather than
creating a record of it.
What are the legal requirements for board minutes?
In order to fulfil their obligations under section 248G
of the Corporations Act 2001 (which is a replaceable
rule) or an equivalent constitutional provision, directors
individually must ensure, by a process of voting, that it
is possible to determine whether they support, oppose
or abstain from a particular resolution, which requires
The board minutes should be approved by the directors as
a true record of their meeting. This is best done between
meetings via email and confirmed at the next meeting
when the chair signs the minutes. The minutes are meant
to be contemporaneous documents aimed at being a
true and accurate reflection of the events occurring at
the meeting and the statutory requirements outlined
in section 251A of the Corporations Act 2001 ('Act') are
strictly applied by the courts:
(6) A minute that is so recorded and signed is evidence of
the proceeding, resolution or declaration to which it
relates, unless the contrary is proved
Importantly, in order to comply with the requirements of
section 251A of the Act, minutes of all proceedings and
resolutions of all board and committee meetings must be:
- Entered in the directors’ minute book within one month
after the relevant meeting; and
- Signed within a reasonable time after the meeting by
the chair of that meeting, or of a succeeding meeting.
Once the minutes are signed, only clerical errors can be
amended. To make corrections, directors have to pass
a resolution at a future meeting. They can also rescind
previous resolutions in a similar way if they no longer
believe them to be the best decisions.
With respect to signing the minutes, it should be noted
that electronic signatures have been recognised in
Australian law under the Electronic Transactions Act 1999
(Cth) (and similar state and territory legislation) provided
certain requirements are met. These provisions do not
apply to the Act, as such minutes must be signed in hard
copy prior to storage.
After signing, the minutes should be kept as part of
the company records. Section 1306 of the Act permits
companies to prepare and store their books and registers
including minute books in a ‘mechanical, electronic and
However, the matters stored in the device must be able
to be reproduced ‘at any time’ in a written form. Further,
companies are required to take reasonable precautions to
protect its records against damage and tampering.
Members have the right to inspect the minutes of general
meetings, but not those of directors’ meetings (s 251B).
As such, it is highly recommended that the minutes of
general meetings and board meetings be stored separately.
Do minutes have to be in English?
There are no requirements under the Act that board
minutes be taken in English. However, as a matter
of good practice, recording minutes in English will
assist auditors in their work and save on delays if the
minutes are requisitioned in a court action. Future
directors of the organisation who do not speak the
language in question will more readily understand
where the organisation has been in the previous years.
Should directors make their own notes of board
There is no legal obligation on directors to take personal
notes. The responsibility for record keeping lies solely with
the organisation. It is unlikely that a court would view the
absence of a director’s notes as a sign that a director has
not fulfilled his/her duties.
Like minutes, directors’ notes can be requisitioned as
evidence in court. This might be helpful if the notes
show that the director has adequately informed him/
herself, questioned appropriately and used proper care
and diligence. However, taking notes can create risk –
ambiguous, inconsistent or incomplete records can be used
against a director.
Boards have a responsibility to properly evaluate the
minutes circulated after meetings. Directors may want to
take notes during the meeting to refresh their memory
when the minutes are circulated. They should request
additions, clarifications or corrections where necessary.
After the minutes are signed, there is no real reason to
retain any notes.
What goes into minutes?
The level of detail included in the minutes will vary from
company to company
General inclusions would be:
- Name of the company
- Nature and type of meeting, for example, directors’
meetings, committee meeting etc.
- Place, date and starting time
- Name of the chair
- Attendees, either physically or by remote access. Invited
guests should be separated from usual attendees
- Apologies accepted
- Presence of a quorum
- Minutes of the previous meeting
- Materials distributed before and during the meeting
- Proceedings of the meeting and resolutions made. To
make cross referencing easier, resolutions should be
numbered. Note that listed companies have additional
requirements relating to proxy voting (s 251AA)
- When attendees leave and re-enter the room
- Abstentions from voting, for example, due to conflicts of
- Closing time
- Signature of the chair.
With the focus on accountability in the current
regulatory and corporate governance environment, some
commentators suggest as advisable the inclusion of broad
reasons for decisions in the minutes. A brief outline of
factors material to the decision, any dissenting views
and the amount of time spent on discussion may help to
establish that directors have exercised proper care and
diligence in their decision making. Recording the length
of time spent on a discussion can denote the relative
importance of a matter to a board meeting, reinforcing
that directors have given it due consideration.
“ With the focus on accountability in
the current regulatory and corporate
governance environment, some
commentators suggest as advisable the
inclusion of broad reasons for decisions
in the minutes.”
Minutes can be used for a director’s defence in court.
However, poorly taken minutes may also be used against a
director by regulators or the opposing party
Matters which should not be included in the minutes are:
- individual speeches or arguments;
- admissions of liability
Keep to a minimum disclosure of legal advice, which is
generally subject to legal professional privilege. Minutes
can briefly state that a matter subject to professional
privilege was discussed but not go into detail.
Should there be minutes of ‘in camera’ meetings?
Sometimes boards may want to meet without management
present. Perhaps one or more directors may need to absent
themselves from discussion of a matter due to conflicts of
interest or duty. In these examples, the meetings could be
said to be held in camera.
Whether there should be minutes of an in camera meeting
is up to the individual board. Some organisations allow
their minutes to say that an in camera meeting took
place but don’t share any further information. Other
organisations may be fuller in their descriptions.
If formal actions come out of this meeting, then it would
be advisable to document them so that outcomes can be
tracked in subsequent meetings.
“ If formal actions come out of this
meeting, then it would be advisable to
document them so that outcomes can be
tracked in subsequent meetings.”
Whether the minute taker should be present will
depend on the individual organisation and the situation.
If the board wants to meet without management
and the company secretary is a board appointee, which
is typical in Australia, then they can probably stay.
The chair will be instrumental in this decision.
Points to consider
- The constitution may specify items and processes that
should be recorded in minutes, such as proposers and
seconders for motions.
- Each decision made by the board should be clear to
anyone reading the minutes, including those who did not
attend the meeting.
- Ensure that the key points of the board’s discussion have
been recorded so that these can be reviewed quickly if
the topic is revisited.
- Ensure that any items requiring implementation or
more information are easy to identify. Some companies
highlight them in bold type while others create a separate
table of actions or ‘matters arising’ from each meeting
(see sample action list).
- If there are many items for ‘noting’ or ‘information’, it
may be more convenient and efficient to group these
together and list them as ‘noted’ or ‘taken as read’ in the
- The board should receive progress reports on the
implementation of decisions.
- The minutes should record who was present and, if
anyone was present for only part of the meeting, either
the time of their entry and exit or the agenda items that
were discussed when they were in the room.
- Any conflicts of interest should be noted with a record
of how they were handled.
- Was the level of discussion appropriate to the
seriousness of each item under consideration? This
can be shown either by noting the start time for each
agenda item or by using phrases such as ‘debated at
length’ or ‘discussed in depth’.
- Some issues may require discussion at more than one
meeting. Items that will be revisited by the board
should be clearly identified and include a time for
- Remember that, in the worst case scenario, board
minutes may be used in court to indicate what board
members knew and authorised.
A sample board agenda
This document is part of a Director Tools series prepared by the Australian Institute of Company Directors. This series has been designed to provide general background information and as a
starting point for undertaking a board-related activity. It is not designed to replace legal advice or a detailed review of the subject matter. The material in this document does not constitute
legal, accounting or other professional advice. While reasonable care has been taken in its preparation, the Australian Institute of Company Directors does not make any express or implied
representations or warranties as to the completeness, currency, reliability or accuracy of the material in this document. This document should not be used or relied upon as a substitute for
professional advice or as a basis for formulating business decisions. To the extent permitted by law, the Australian Institute of Company Directors excludes all liability for any loss or damage
arising out of the use of the material in this document. Any links to third-party websites are provided for convenience only and do not represent endorsement, sponsorship or approval of those
third parties, or any products and/or services offered by third parties, or any comment on the accuracy or currency of the information included in third party websites. The opinions of those
quoted do not necessarily represent the view of the Australian Institute of Company Directors.