THE CORPORATIONS LAW

CHAPTER 2B - BASIC FEATURES OF A COMPANY

PART 2B.4 - REPLACEABLE RULES AND CONSTITUTION

SECTION 136   CONSTITUTION OF A COMPANY  

136(1)  [Adoption]  

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 memorandum and articles of a company immediately before the commencement of this Part are taken together to make up the company's constitution after commencement (see section 1414).

Note 2:

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 Law. Consequential amendments to the rest of the company's constitution can be made under that Act or this Law. See Subdivision 2 of Division 4 of Part 2A of that Act.

136(2)  [Modification or repeal]  

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)  [Further requirement]  

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)  [Modification or repeal of further requirement]  

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)  [Public company]  

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.