Corporations Act 2001

CHAPTER 2B - BASIC FEATURES OF A COMPANY  

PART 2B.4 - REPLACEABLE RULES AND CONSTITUTION  

SECTION 134  

134   INTERNAL MANAGEMENT OF COMPANIES  
A company's internal management may be governed by provisions of this Act that apply to the company as replaceable rules, by a constitution or by a combination of both.

Note: There are additional rules about internal management in ordinary provisions of this Act and also in the common law.

SECTION 135   REPLACEABLE RULES  
Companies to which replaceable rules apply

135(1)    
A section or subsection (except subsection 129(1) , this section and sections 140 and 141 ) whose heading contains the words:

(a)    replaceable rule - applies as a replaceable rule to:

(i) each company that is or was registered after 1 July 1998; and

(ii) any company registered before 1 July 1998 that repeals or repealed its constitution after that day; and

(b)    

replaceable rule for proprietary companies and mandatory rule for public companies - applies:

(i) as a replaceable rule to any proprietary company that is or was registered after 1 July 1998; and

(ii) as a replaceable rule to any company that is or was registered after 1 July 1998 and that changes or changed to a proprietary company (but only while it is a proprietary company); and

(iii) as a replaceable rule to any proprietary company that is or was registered before 1 July 1998 that repeals or repealed its constitution after that day; and

(iv) as an ordinary provision of this Act to any public company whenever registered.

The section or subsection does not apply to a proprietary company while the same person is both its sole director and sole shareholder.

Note 1: See sections 198E , 201F and 202C for the special provisions that apply to a proprietary company while the same person is both its sole director and sole shareholder.

Note 2: A company may include in its constitution (by reference or otherwise) a replaceable rule that does not otherwise apply to it.

Note 3: Paragraph (a) does not apply for CCIVs: see section 1223A .

Company ' s constitution can displace or modify replaceable rules

135(2)    
A provision of a section or subsection that applies to a company as a replaceable rule can be displaced or modified by the company ' s constitution.

Failure to comply with replaceable rules

135(3)    
A failure to comply with the replaceable rules as they apply to a company is not of itself a contravention of this Act (so the provisions about criminal liability, civil liability and injunctions do not apply).

Note: Replaceable rules that apply to a company have effect as a contract (see section 140 ).

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 .

SECTION 137  

137   DATE OF EFFECT OF ADOPTION, MODIFICATION OR REPEAL OF CONSTITUTION  
If a new constitution is adopted or an existing constitution is modified or repealed, that adoption, modification or repeal takes effect:

(a) if it is the result of a special resolution:

(i) on the date on which the resolution is passed if it specified no later date; or

(ii) on a date specified in, or determined in accordance with, the resolution if the relevant date is later than the date on which the resolution is passed; or

(b) if it is the result of a Court order made under section 233:

(i) on the date on which the order is made if it specifies no later date; or

(ii) on a date specified by the order.

SECTION 138  

138   ASIC MAY DIRECT COMPANY TO LODGE CONSOLIDATED CONSTITUTION  
ASIC may direct a company to lodge a consolidated copy of its constitution with ASIC.

SECTION 139   COMPANY MUST SEND COPY OF CONSTITUTION TO MEMBER  

139(1)   [ Requirements]  

A company must send a copy of its constitution to a member of the company within 7 days if the member:

(a) asks the company, in writing, for the copy; and

(b) pays any fee (up to the prescribed amount) required by the company.

139(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

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

SECTION 140   EFFECT OF CONSTITUTION AND REPLACEABLE RULES  

140(1)   [ Contract]  

A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract:

(a) between the company and each member; and

(b) between the company and each director and company secretary; and

(c) between a member and each other member;

under which each person agrees to observe and perform the constitution and rules so far as they apply to that person.

140(2)   [ Binding nature of modification to constitution]  

Unless a member of a company agrees in writing to be bound, they are not bound by a modification of the constitution made after the date on which they became a member so far as the modification:

(a) requires the member to take up additional shares; or

(b) increases the member's liability to contribute to the share capital of, or otherwise to pay money to, the company; or

(c) imposes or increases restrictions on the right to transfer the shares already held by the member, unless the modification is made:

(i) in connection with the company's change from a public company to a proprietary company under Part 2B.7; or

(ii) to insert proportional takeover approval provisions into the company's constitution.

SECTION 141  

141   TABLE OF REPLACEABLE RULES  

The following table sets out the provisions of this Act that apply as replaceable rules.

Table for replaceable rules

Table for replaceable rules

Provisions that apply as replaceable rules
	Officers and Employees
1	Voting and completion of transactions - directors of proprietary companies	194
2	Powers of directors	198A
3	Negotiable instruments	198B
4	Managing director	198C
5	Company may appoint a director	201G
6	Directors may appoint other directors	201H
7	Appointment of managing directors	201J
8	Alternate directors	201K
9	Remuneration of directors	202A
10	Director may resign by giving written notice to company	203A
11	Removal by members - proprietary company	203C
12	Termination of appointment of managing director	203F
13	Termsand conditions of office for secretaries	204F
	Inspection of books
14	Company or directors may allow member to inspect books	247D
	Director ' s Meetings
15	Circulating resolutions of companies with more than 1 director	248A
16	Calling directors ' meetings	248C
17	Chairing directors ' meetings	248E
18	Quorum at directors ' meetings	248F
19	Passing of directors ' resolutions	248G
	Meetings of members
20	Calling of meetings of members by a director	249C
21	Notice to joint members	249J(2)
22	When notice is given	249J(4)
22A	(Repealed)
23	Notice of adjourned meetings	249M
24	Quorum	249T
25	Chairing meetings of members	249U
26	Business at adjourned meetings	249W(2)
27	Who can appoint a proxy	249X
	[ replaceable rule for proprietary companies only ]
28	Proxy vote valid even if member dies, revokes appointment etc.	250C(2)
29	How many votes a member has	250E
30	Jointly held shares	250F
31	Objections to right to vote	250G
32	How voting is carried out	250J
33	When and how polls must be taken	250M
	Shares
33A	Pre-emption for existing shareholders on issue of shares in proprietary company	254D
33B	Other provisions about paying dividends	254U
34	Dividend rights for shares in proprietary companies	254W(2)
	Transfer of shares
35	Transmission of shares on death	1072A
36	Transmission of shares on bankruptcy	1072B
37	Transmission of shares on mental incapacity	1072D
38	Registration of transfers	1072F
39	Additional general discretion for directors of proprietary companies to refuse to register transfers	1072G