A company’s internal management is governed by either:  

• Its constitution;  
• Replaceable rules of the Corporations Act 2001;  
• A combination of both as allowed under s 134 of the Corporations Act 2001 (Cth). 
• 
  

In most circumstances, a company does not need to adopt a constitution. A company requires a constitution however, if it wishes to replace, modify or supplement the replaceable rules.  

Common circumstances where a company constitution is adopted: 

• Publicly listed companies 
• There are different classes of shares 
• Replaceable rules are not sufficient  
• The company holds certain licenses/ approvals or must meet certain criteria to get approvals/exemptions eg Superannuation Trustee Companies 

If a company chooses to adopt a constitution, it will bind the company, the directors, the shareholders and the secretary (if any).  

In most circumstances, a company does not have to adopt a constitution unless in the following cases:  

• A no liability company must have its sole object as mining under s 112(2); 
• A company limited by guarantee wishing to omit the word ‘limited’ from its name must be restricted to charitable purposes amongst other restrictions s 150.  

There is no prescribed form for a constitution and it can be adopted either at registration or at a later date. A company constitution is a public document.  

Disclaimer:

This is NOT legal advice and should NOT be relied as such.

For legal queries, please contact us on 02 8014 5818 or email info@checkslaw.com.au.