Commonwealth Consolidated Acts

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Constitution of a company

             (1)  A company adopts a constitution:

                     (a)  on registration--if each person specified in the application for the company's registration as a person who consents to become a member agrees in writing to the terms of a constitution before the application is lodged; or

                     (b)  after registration--if the company passes a special resolution adopting a constitution or a court order is made under section 233 that requires the company to adopt the constitution.

Note 1:       The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company's constitution and about amending those rules. They override this Act (see section 1348 of this Act). Consequential amendments to the rest of the company's constitution can be made under that Act or this Act (see Subdivision 2 of Division 4 of Part 2A of that Act).

Note 2:       Section 1223B applies instead of this section in relation to the constitution of a CCIV (see also subsection 1223D(6)).

             (2)  The company may modify or repeal its constitution, or a provision of its constitution, by special resolution.

Note:          The company may need leave of the Court to modify or repeal its constitution if it was adopted as the result of a Court order (see subsection 233(3)).

             (3)  The company's constitution may provide that the special resolution does not have any effect unless a further requirement specified in the constitution relating to that modification or repeal has been complied with.

             (4)  Unless the constitution provides otherwise, the company may modify or repeal a further requirement described in subsection (3) only if the further requirement is itself complied with.

             (5)  A public company must lodge with ASIC a copy of a special resolution adopting, modifying or repealing its constitution within 14 days after it is passed. The company must also lodge with ASIC within that period:

                     (a)  if the company adopts a constitution--a copy of that constitution; or

                     (b)  if the company modifies its constitution--a copy of that modification.

This also applies to a proprietary company that has applied under Part 2B.7 to change to a public company, while its application has not yet been determined.

             (6)  An offence based on subsection (5) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

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