What is constitution adoption & amendment?
Replaceable rules vs a constitution explained, the special resolution prepared — the drafting itself reviewed by an Australian professional.
India splits company governance into two lodged documents — a Memorandum of Association setting the objects, an Articles of Association setting the internal rules — both filed with the ROC and sitting in the public record. Australia doesn't run that system. Since the Corporations Act 2001 (Cth), a company's internal governance comes from one of three sources: a constitution the company adopts itself, the statutory replaceable rules (s.141 — 39 default rules that apply automatically unless displaced), or a mix of both under s.134. None of it gets lodged with ASIC as a public filing the way an AOA does in India; the constitution, where one exists, is a private document the company keeps and produces on request.
Most Australian proprietary companies registered after 1 July 1998 never adopt a constitution at all — they run on the replaceable rules by default, and for a lot of straightforward two-or-three-director companies that's a perfectly workable governance framework with zero drafting cost. The exception that catches people is the single-director, single-shareholder proprietary company: the replaceable rules do not apply to it. That company either needs its own constitution or is operating with a governance gap that only becomes visible when something contested happens — a dispute over a director's power to act alone, or a bank wanting to see the rule that lets one person sign for the company.
Who does what
Constitution drafting is reviewed by an Australian lawyer; CapEasy prepares the resolution pack and keeps the record.
Who does what
| Your CapEasy team | Constitution adoption & amendment, the reconciliations and reporting behind it, and the questions list that keeps it honest. |
| Your registered BAS or tax agent | Everything that carries a licence in Australia — rendered exactly as written: work out what goes on your bas, or advise you on it — under tasa 2009 that requires registration we do not hold. |
| You | One conversation with one named person, and the decisions that are genuinely yours. |
Constitution adoption & amendment in Australia
A constitution is never filed with ASIC — a special resolution is the only step with a legal threshold
Adopting, amending or repealing a constitution has no ASIC lodgement fee attached to the act itself, because there is nothing to lodge — the document lives with the company, not on the public register. What does carry a legal threshold is the vote: members have to pass a special resolution, meaning at least 75% of votes cast by those entitled to vote, at a properly noticed general meeting or via a valid written resolution. Get the percentage or the notice wrong and the resolution is void regardless of how the document itself reads.
Replaceable rules do not apply to a sole-director, sole-shareholder proprietary company
Section 141 of the Corporations Act makes the 39 replaceable rules the default governance framework for most companies registered after 1 July 1998 — but it carves out the one-person company. If the same individual is sole director and sole shareholder, the replaceable rules don't apply to that company, full stop. That company needs its own constitution addressing how decisions get made and recorded, or it is operating without a clear statutory fallback for basic governance questions.
A consequential ASIC form runs on its own clock, separate from the constitution change
If a constitution amendment also changes something ASIC tracks on the public register — the company's share structure, its type from proprietary to public, or similar — that change gets notified via Form 205 or Form 484 as its own lodgement, within its own statutory window (14 days for a Form 205 name-related resolution, 28 days for most Form 484 changes). The constitution amendment itself doesn't need lodging; the downstream register change does, and missing that window triggers the standard ASIC late-fee schedule regardless of how correctly the constitution vote was run.
A repeal back to the replaceable rules is a special resolution too, not a formality
Deciding a constitution has stopped earning its keep and reverting to the statutory replaceable rules takes the same 75% special resolution as adopting one in the first place. It isn't a lesser vote just because the destination is the statutory default rather than a bespoke document — the company still needs the resolution properly worded, the meeting properly noticed, and the outcome properly minuted before it can rely on the replaceable rules again.
What your registered BAS or tax agent receives from us
- A governance-position check: whether the company currently runs on a constitution, the replaceable rules by default, or a mix under s.134 — pulled from the company's own records, not assumed.
- A sole-director/sole-shareholder flag where it applies, naming the specific replaceable-rules gap that leaves that company without a statutory fallback.
- The special resolution's operative wording, drafted against the exact clause being adopted, amended or repealed — ready for your Australian lawyer's review before it goes to members.
- A compliant meeting notice specifying the resolution's precise text, matched to the notice period the company's current governance document (or the replaceable rules) requires.
- A minute recording the resolution as passed, including the vote count against the 75% threshold, for the company's own register.
- A flag on any consequential Form 205 or Form 484 lodgement the change triggers, with its own 14- or 28-day clock tracked separately from the constitution work.
