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Corporations Bill 2001

Part 5C.3 The constitution

   

601GA   Contents of the constitution

             (1)  The constitution of a registered scheme must make adequate provision for:

                     (a)  the consideration that is to be paid to acquire an interest in the scheme; and

                     (b)  the powers of the responsible entity in relation to making investments of, or otherwise dealing with, scheme property; and

                     (c)  the method by which complaints made by members in relation to the scheme are to be dealt with; and

                     (d)  winding up the scheme.

             (2)  If the responsible entity is to have any rights to be paid fees out of scheme property, or to be indemnified out of scheme property for liabilities or expenses incurred in relation to the performance of its duties, those rights:

                     (a)  must be specified in the scheme’s constitution; and

                     (b)  must be available only in relation to the proper performance of those duties;

and any other agreement or arrangement has no effect to the extent that it purports to confer such a right.

             (3)  If the responsible entity is to have any powers to borrow or raise money for the purposes of the scheme:

                     (a)  those powers must be specified in the scheme’s constitution; and

                     (b)  any other agreement or arrangement has no effect to the extent that it purports to confer such a power.

             (4)  If members are to have a right to withdraw from the scheme, the scheme’s constitution must:

                     (a)  specify the right; and

                     (b)  if the right may be exercised while the scheme is liquid (as defined in section 601KA) ¾ set out adequate procedures for making and dealing with withdrawal requests; and

                     (c)  if the right may be exercised while the scheme is not liquid (as defined in section 601KA) ¾ provide for the right to be exercised in accordance with Part 5C.6 and set out any other adequate procedures (consistent with that Part) that are to apply to making and dealing with withdrawal requests.

The right to withdraw, and any provisions in the constitution setting out procedures for making and dealing with withdrawal requests, must be fair to all members.

601GB   Constitution must be legally enforceable

                   The constitution of a registered scheme must be contained in a document that is legally enforceable as between the members and the responsible entity.

601GC   Changing the constitution

             (1)  The constitution of a registered scheme may be modified, or repealed and replaced with a new constitution:

                     (a)  by special resolution of the members of the scheme; or

                     (b)  by the responsible entity if the responsible entity reasonably considers the change will not adversely affect members’ rights.

             (2)  The responsible entity must lodge with ASIC a copy of the modification or the new constitution. The modification, or repeal and replacement, cannot take effect until the copy has been lodged.

             (3)  The responsible entity must lodge with ASIC a consolidated copy of the scheme’s constitution if ASIC directs it to do so.

             (4)  The responsible entity must send a copy of the scheme’s constitution to a member of the scheme within 7 days if the member:

                     (a)  asks the responsible entity, in writing, for the copy; and

                     (b)  pays any fee (up to the prescribed amount) required by the responsible entity.