What Is A Company Constitution? (2022 Update)

Feb 26, 2021
Reading Time: 2 minutes
Written by Dominic Woolrych
A company constitution governs a company’s internal management. A Constitution is an essential and crucial document that oversees the activities of your company as well as the relationship of your company’s directors and shareholders.

Table of Contents

  • Company Constitutions Explained
  • Why do I need a Constitution?
  • How do I create a Company Constitution?
  • Amending your Company’s Constitution
  • What are the Replaceable Rules?
  • Article summary

Company Constitutions Explained

To surmise, a Company Constitution is a set of rules which governs a company’s directors and shareholders in the operation of the business. Thus, they provide a broad base in which basic expectations and dispute resolution can be returned to.

Why do I need a Constitution?

The Australian Securities and Investment Commission (ASIC) requires that you choose between having your own Constitution, adopting the Corporation Act’s Replaceable Rules, or a combination of both. Therefore, it is necessary to have either drafted up your Constitution or be seeking to adopt the Replaceable Rules before registering your company. Company constitutions should cover:

  • Your company’s structure
  • The issue and transfer of shares
  • Share certificates
  • Governance of meetings
  • Voting procedures
  • Directors
  • Company secretary
  • Dividends

How do I create a Company Constitution?

You can create your company’s constitution yourself, seek the advice of a company lawyer or use ASIC’s Replaceable Rules. When you register your company through Lawpath, you will be provided with an amenable Company Constitution. It’s crucial that you have an effective Constitution that will govern your company’s internal management.

Amending your Company’s Constitution

You can modify or repeal provisions within your constitution by passing a special resolution. For a special resolution you must give at least 21 days notice (28 if publicly listed) and the agreement of usually 75% majority of votes cast. A company is required to provide an up to date copy of their constitution seven days after request from a member of the company (or payment, if payment is charged). Therefore, imperative to have an up to date Constitution.

What are the Replaceable Rules?

All Australian companies are governed by the Corporations Act. This piece of legislation sets out various laws that companies and company office holders must abide by. The Corporations Act also contains a set of Replaceable Rules which can act in place of a Constitution and govern a company’s internal management.

The following is an example of the provision which the replaceable rules cover:

  • Offices and employees (i.e. powers of directors);
  • Inspection of books (i.e. allowing members to inspect books);
  • Directors’ meetings (i.e.how director’s meeting should be run);
  • Meeting of members (i.e. how voting should be carried out);
  • Shares and transfer of shares (i.e. provisions about paying dividends);

You can choose at any time to modify or displace the Replaceable Rules by way of your own constitution. Note also that the Replaceable Rules do not apply to companies that have a sole member/director. They are also not applicable where the member/director is the same person.

Article Summary

  • Company Constitution: a set of rules which governs a company’s directors and shareholders in the operation of the business

Before registering a company, you can either choose between using a Company Constitution or the Corporation Act’s Replaceable Rules to govern your internal management. However, a Constitution is broader in nature and can be customised to suit the specific situation your business is in. Thus, we would recommend looking at creating a Company Constitution with help from our experts. Or alternatively, you can contact a business lawyer here.

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