Adopt a new Constitution
On 1 July 1998 replaceable rules were introduced to enable companies to function without "Articles of Association" and "Memorandum of Association", (which were abolished on 1 July 1998). The basic rules of internal management are included in the Act as 'replaceable rules'. Some of these rules are mandatory for all companies and there are a few special rules for single shareholder / single director companies.
The replaceable rules do not apply to a proprietary company while the same person is both its sole director and sole shareholder, or a company that had a constitution (Memorandum & Articles) before the introduction of the replaceable rules regime, and has not repealed it.
Prior to 1 July 1998 all Proprietary Companies required a minimum of two (2) directors. It is suggested that all companies registered prior to this date adopt a new constitution to enable future changes to sole director if required. The new constitution must be adopted prior to a resignation of director that causes the company to become sole director.
At least one secretary of a company, at least one director of a proprietary company, and at least two directors of a public company must ordinarily be resident in Australia.
A company can simply take advantage of the rules in the Act as a means of governance and does not need a separate constitution of its own. A company will need a constitution only if it wants to displace, modify or add to the replaceable rules.
If a constitution is adopted, it is not necessary to lodge the constitution of a proprietary company with the Australian Securities and Investments Commission (ASIC) but they must be kept with the company's records so they are available if required. If a public company adopts a constitution or a combination of replaceable rules and constitution, a copy must be lodged with the Australian Securities and Investments Commission (ASIC). The Act requires that a no-liability company must be a public company and requires it to have a constitution which restricts its activity to mining purposes only. A no-liability company (NL) must, therefore, lodge a copy of its constitution with the Australian Securities and Investments Commission (ASIC).
The Constitution may state the objects of the company, although the Act automatically enables a company to have the legal capacity of a natural person and therefore there is no need to state the objects except where required to do so under the Act, (ie NL companies).
If the company states its objects it is restricted to them unless they are subsequently altered by a special resolution of the members. A company's constitution may define legal rights, duties and restrictions of the company. If you choose that the company will have a constitution, you should seek legal advice regarding its drafting.
The Australian Taxation Office (ATO) have specific clauses which the constitution of a "non-profit company" (generally public companies) must contain to be eligible for tax concessions. The ATO can provide more details including examples of the clauses required. The ATO's internet address is http://www.ato.gov.au.
For companies limited by guarantee, the members will become liable as contributories on a winding up of the company. Each member must agree in writing to the amount of the 'guarantee' to pay.
This information is supplied as a brief outline only and does not preclude the Company's Officers and Secretaries from fulfilling their legal obligations. Company Planners Pty Ltd cannot explain every responsibility or cover every situation, and in this regard you should seek professional business advice and refer to the Corporations Act 2001. You will be held responsible for your legal obligations and not Company Planners Pty Ltd.
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