The Corporations Act 2001 (Cth) (Act) requires a company to have a constitution. The following document is a basic document constitution for an unlimited public company with shares. An unlimited company is 1 whose members have no limit placed on their liability to the debts of the company (Section 9 of the Act). There is no ‘one size fits all’ document constitution. This document should therefore be used as a guide only and tailored to suit your company’s particular circumstances. Listed public companies in particular have additional reporting requirements to the ASX (see Attachment 1).
Public companies (both listed and unlisted) have a legal requirement to lodge a copy of the special resolution adopting, modifying, or repealing its constitution. If adopted, a copy of the new constitution must be provided.
A constitution is not a stand-alone code that governs the powers, duties, rights and obligations of the company, its directors and officers and shareholders. Regard must always be had to the Act and the common law when considering any issue relating to a company.
Tailoring the company constitution
This precedent does not restrict or prohibit the company’s exercise of any of its powers. If such restrictions are required, a suitable amendment should be inserted.
For other company constitutions, see:
· “Company constitution – general”;
· “Company constitution – Aboriginal and Torres Strait Islander corporation”;
· “Company constitution – public company limited by shares”;
· “Company constitution – no liability mining company”;
· “Company constitution – unlimited private company”; and
“Company constitution – public company limited by guarantee”.
This document has been authored for Lexis Nexis by Sarah Harvey, Directions in Governance.
This document is prepared with the assistance of Specialist Editor Stephen Newman, Executive Counsel, Ponte Earle.