Company Constitution or Replaceable Rules? (2022 Update)

Feb 26, 2021
Reading Time: 3 minutes
Written by Dominic Woolrych
The internal management of your company is an important matter. Under Australian law, there are two ways you can organise this. Firstly, you can manage your company under an internal company constitution. Alternatively, you can manage it under national rules outlined in the Corporations Act 2001 (Cth). In this article, we’ll discuss what Company Constitutions and Replaceable Rules involve, so you can decide which framework is best for your company. If you require legal guidance regarding the management of your company, you should contact a business lawyer.

Table of Contents

  • Company Constitutions
  • Replaceable Rules
  • The Difference Between a Company Constitution and Replaceable Rules
  • Article Summary: Which one is better?

Company Constitutions

First of all, company constitutions are not mandatory for every proprietary company. However, company constitutions are extremely useful and indeed recommended for companies. This is especially true for those that do not have ordinary share arrangements. Company constitutions specify the rules governing a company’s directors and shareholders in relation to the operation of a company. If you are a current or future shareholder, you will be bound by the constitution.

A company constitution does not affect the personal capacity of a shareholder. This is because the rights stemming from a company constitution will only be enforceable against shareholders in their capacity as a shareholder. Further, company shareholders and directors have no enforceable rights. Therefore, the provisions of a company constitution which serve to protect the interests of minority shareholders, cannot be enforced by majority shareholders.

Modification of Company Constitutions

To modify a company constitution, a special resolution must be passed. A special resolution requires 21 days notice (28 days for publicly listed companies). 75% of the votes need to be in favour to pass the resolution. Check out our guide to learn more about modifying a company constitution.

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Replaceable Rules in the Corporations Act

Replaceable rules, like a company constitution govern the activities and operation of companies. These rules are in the Corporations Act 2001 (Cth) and apply unless they are ‘displaced’ or modified by the company. Further, the replaceable rules are set out in section 141 of the Act. These rules govern matters relating to;

  • the appointment of directors;
  • the powers of directors;
  • the regulation of both directors’ and members’ meetings;
  • inspection of the books;
  • unusual rights which may attach to special classes of shares; and
  • the transfer of shares.

Although all persons under a company agree to follow the replaceable rules. It only operates contractually between the company and members, as well as the company and directors, including: company secretary and members.

Importantly, a breach of the replaceable rules does not result in a breach of the Corporations Act. However, there is a right between a shareholder of a company and the other shareholders to require the compliance with any replaceable rules that govern a company’s internal activities.

What companies do replaceable rules apply to?

If your company was registered after 1 July 1998, the replaceable rules will apply. Additionally, if your company was registered prior to 1 July 1998 and has repealed its constitution after that date, the replaceable rules will apply.

The Difference Between A Company Constitution and Replaceable Rules

An important difference from company constitutions is that replaceable rules enable minority shareholders to protect their interests against decisions which may have an adverse impact on them in terms of financial consequences. As it allows minority shareholders to negotiate terms of their relationship with other shareholders.

Notably, a constitution is more specific and more comprehensive than simply relying on the brief provision of replaceable rules of the Corporations Act.

A further critical difference is that a company constitution is a published document that is accessible not only to company members but also to other parties, and is arguably clearer than the replaceable rules as legislation often lacks comprehensive clarity.

Finally, a company constitution can protect a broader range of companies. For example, the replaceable rules cannot govern proprietary companies where a person is the sole director and shareholder, and the replaceable rules are not applicable to special purpose companies.

Article Summary – Which one is better?

  • Company Constitution: specifies the rules governing a company’s directors and shareholders in relation to the operation of the company
  • Replaceable Rules: a generalised set of rules governing a company’s operations outlined in the Corporations Act 2001 (Cth)

A company constitution is broader and will cover a wider range of circumstances due to it’s individualised nature. Furthermore, replaceable rules also lack coverage of certain business structure such as propriety companies. Due to this, it is arguably the safer way to manage your company’s internal affairs.

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