Pack to adopt or replace a Company's Constitution

Preliminary Matters

✅ If a Constitution is adopted, replaced or changed after registration, the company's shareholders must first pass a special resolution to adopt or replace the Constitution.

✅ If an existing Constitution is being replaced or changed, it is important to review the existing Constitution to determine whether there are any additional requirements that need to be followed.

Passing a Company Resolution

A resolution is a formal way in which a company can note decisions that are made at a meeting of company members (that is, shareholders).

There are two types of resolutions: ordinary and special.

Under the Corporations Act 2001, most of the decisions that affect a company need to be made by a resolution.

Additionally, a company's constitution may have its own rules about what decisions need to be made by resolution.

How to Pass a Resolution?

There are 2 ways that shareholders may pass a resolution:

1️⃣ At a meeting; or

2️⃣ By having all of the shareholders record and sign their decision.

Additionally, a company's Constitution may have its own rules about what decisions need to be made by resolution, or how resolutions need to be passed.

For a resolution to pass at a meeting, it must meet the following criteria:

✅ The resolution is passed at a meeting which is properly convened and satisfied any quorum (minimum number of members are present) requirements;

✅ The resolution is put into the company's records within one month of the meeting being held, and

✅ The minutes of the meeting where the resolution was passed must be signed by the chair of the meeting, or the chair of the following meeting.

If these criteria aren't met, the resolution could be considered as invalid.

You also need to determine if you are required to pass an ordinary resolution or a special resolution.

If you are passing a special resolution, there may be other requirements you need to fulfil.

A Special Resolution is Required to adopt or change a Company's Constitution

A special resolution must be passed by at least 75% of the votes cast by shareholders of the company entitled to vote on the resolution and who vote at the meeting in person or by proxy (if proxies are allowed).

The sole shareholder of a company may pass a resolution by recording and signing their decision.

A company must keep a written record (minutes) of the members' resolutions and meetings.

If there is to be a general meeting, a special resolution needs at least 28 days notice for publicly listed companies and 21 days notice for other company types.

The notice of the general meeting should include the time, date and place of the meeting, the general business that will be discussed and the intention to pass the resolution.

Automatically generate the right Company Secretarial documents

Embedded Lawyer-Logic™ will guide you to determine + generate the right company secretarial documents to approve the adoption or replacement of a Company's Constitution:

1️⃣  Minutes of a shareholders' meeting; or

2️⃣  Written resolutions of the shareholders.

These automated documents assume that an entirely new Constitution will be implemented.

The new Constitution is not generated by this process.

If you don't already have a company Constitution, or want to generate a new one, then for a private proprietary company limited by shares (you know this is the case when the abbreviations Pty. Ltd. are used in the company name):

✅ We recommend you create a high-quality expertly drafted private company Constitution here.

For a Private Company

A Private Company must keep a copy of its current Constitution with the company’s records.

There is no need to notify ASIC of any changes to the Constitution, or to provide ASIC with a copy of (or updates to) the Company's Constitution.

If a shareholder requests a current copy of the Company's Constitution, it needs to be provided within 7 days of the request.

For a Public Company: Notify ASIC + File a copy of the new Constitution

There is a mandatory requirement to lodge an ASIC Form 205J (together with evidence of the special resolution and a copy of the new Constitution) on behalf of the Public Company, or Private Company in the process of becoming a Public Company.

From November 2015, changes to company details must be made online.

Refer to the ASIC website here for more information.

If you are late (more than 14 days after the change) notifying ASIC of the resolution:

❌ Failure to Notify ASIC invokes strict liability.

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

Making the Changes Online

You need to register to use ASIC's online services before you can make any changes.

❌ The paper ASIC Form 205J is no longer available.

Once ASIC has received your notification online, they will update your company name within one business day.

To make changes to company details:

1️⃣  Register for online access using your company's corporate key;

2️⃣  Log in to our online services with your company's ACN or ABN;

3️⃣ Enter your username and password;

4️⃣ Select 'Start new form' and select 'Notify of Resolution'.

All correspondence is sent to you electronically once you've registered for online services.

You will receive an email alert when the correspondence is available.

This includes your company annual statement.