Corporations Act 2001

CHAPTER 2B - BASIC FEATURES OF A COMPANY  

PART 2B.4 - REPLACEABLE RULES AND CONSTITUTION  

SECTION 136   CONSTITUTION OF A COMPANY  

136(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) ).

136(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) ).

136(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.

136(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.

136(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.

136(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 .