Since 1 July 1998 a company’s “Memorandum & Articles of Association” have, together, been called the “Constitution” and for Proprietary Limited companies there is no longer a requirement – or, indeed, the possibility – to lodge a copy of, or amendments to, the Constitution with ASIC.
Note: this lodgement requirement still applies to all other companies, and to Pty Ltd companies which are lodging application to become a public company type (ie, their new Constitution is to be lodged at the same time as the request to change type).
To amend or replace an existing Constitution for all companies a Special Resolution must still be passed by the members/shareholders [Section 136(2) of Corporations Act].
A Special Resolution requires at least 75% of the members (shareholders) to approve.
However, a Pty Ltd company does not have to (and, in fact, also cannot) lodge details of the Special Resolution with ASIC either [but other companies must – ref CA Sec. 136(5)].
Following shareholder approval then, the Company simply amends or replaces the Constitution in its records (usually held in the Company Folder – with the minutes and registers, etc) and, I would suggest, provides a copy of the new/amended Constitution to all Directors and the corporate lawyer and accountant, for their information, reference and use as necessary.
*Originally written by Company Secretary, an Australian virtual company secretary service.