Corporations Act 2001
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: 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).
[ CCH Note: S 136(1) will be amended by No 69 of 2020, s 3, Sch 1, by inserting " with the Registrar " after " is lodged " in para (a) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
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.
[ CCH Note 1: S 136(5) will be amended by No 69 of 2020, s 3, Sch 1, by substituting " the Registrar " for " ASIC " (wherever occurring) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
[ CCH Note 2: S 136(5A) will be inserted by No 69 of 2020, s 3, Sch 1 (effective 22 June 2022 or a day or days to be fixed by Proclamation). S 136(5A) will read:
The lodgement must meet any requirements of the data standards.]
An offence based on subsection (5) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .