Yes, a company can amend, replace or repeal an existing constitution. Generally this is achieved by passing a special resolution; however an alternative process may be set out in the company’s original constitution.
A special resolution is passed where at least 75% of voting members vote in favour of the resolution at a general meeting. In order to hold a general meeting and vote on a special resolution, a company must give sufficient notice.
At least 28 days’ notice for publicly listed companies and 21 days’ notice for other company types must be given unless members with at least 95% of the votes that may be cast at the meeting agree beforehand to vote on shorter notice pursuant to s249H(2) of the Corporations Act 2001.
If the company amending or replacing its constitution is a public company then, pursuant to s136 of the Corporations Act 2001, it will also need to lodge with ASIC:
- A Form 205J which notifies them that a resolution to change the company’s constitution has been passed; and
- A copy of the new constitution that has been adopted; or
- A copy of the modification that has been made to the constitution.
