(1) A company adopts a constitution:
- (a)
- on registrationif 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 registrationif 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: 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).
(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 constitutiona copy of that constitution; or
- (b)
- if the company modifies its constitutiona 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.