WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Corporations (Aboriginal
and Torres Strait
Islander) Bill 2005
Date Introduced: 23 June 2005
House: House of
Representatives
Portfolio: Immigration and Multicultural and Indigenous
Affairs
Commencement: The Act if passed would commence on 1 July
2006
The
Corporations Aboriginal and Torres Strait
Islander) Bill 2005 ( the Bill ) replaces the
Aboriginal Councils and Associations Act 1976 ( ACA
Act ) and is intended to improve governance and capacity in the
indigenous corporate sector. The ACA Act was deemed to be
inadequate to deal with the numbers of indigenous corporations and
their diversity, especially given developments in corporate
regulation and native title. The Bill is meant to provide a
comprehensive, stand-alone regime that aligns many provisions with
the Corporations Act 2001 ( Corporations Act ), but also
provides for special measures for indigenous people.
The Bills Digest seeks to highlight:
- any significant differences between the Corporations Act and
the Bill
- any significant differences between the ACA and the Bill
- the impact of the review recommendations not implemented,
and
- the relationship of the restructure to Native Title
legislation.
About 2800 Aboriginal and Torres Strait Islander corporations (
ATSI corporations ) are currently registered under the ACA Act.
When introducing the Bill, The Hon. Warren Entsch MP
(Parliamentary Secretary to the Minister for Industry, Tourism and
Resources) stated that whilst this Bill largely replicates modern
standards of duties for officers, directors and employees that
exist in the Corporations Act , it also acknowledges the special
circumstances of indigenous corporations.(1)
These circumstances include remoteness, capacity, culture and
the need to meet the requirements of special statutory regimes such
as those that apply to native title.
An independent review of the ACA Act was commissioned by the
Registrar in 2001. The review was led by law firm Corrs Chambers
Westgarth and team members included specialists Senatore Brennan
Rashid, Professor Mick Dodson, Christos Mantziaris and Anthropos
Consulting. The final report
of the review was presented in December 2002.
The Bill generally reflects the recommendations of the review
with several notable exceptions relating to:
- Membership not restricted to indigenous people and their
dependants
- Corporate members allowed
- Registrar s power to appoint an administrator not scrapped,
and
- Registrar still able to approve the constitution of proposed
corporations.
The Corporations Act provisions which are imported into the Bill
relate to directors duties, external administration, the
examination of the affairs of connected entities and technical
matters such as the jurisdiction of courts and offences.
The terms of the Bill are subject to an inquiry by the Senate
Legal and Constitutional Committee. It was referred by the Senate
on 6 September 2005 for inquiry and report by 12 October 2005. On
11 October 2005 the Committee agreed to extend the reporting date
to the first sitting day in 2006. On 8 December 2005, the Committee
agreed to seek leave to further extend the reporting date to 30
March 2006.
The proposed extension of the reporting date to 30 March 2006 is
intended to allow the Bill to be considered in conjunction with the
Corporations (Aboriginal and Torres Strait
Islander) Miscellaneous and Transitionals
Bill (the Transitional Bill). An exposure draft of the
Transitional Bill is expected to be publicly available by the
beginning of March 2006.
The current Bill represents the culmination of a long process of
review and consultation which began in the late 1960s about how
indigenous corporate governance should be managed.
The need for a simple, inexpensive, culturally appropriate
method for the legal recognition of Indigenous groups and
communities and their decisions was identified in the late 1960s by
the Council for Aboriginal Affairs which had been established by
the Holt Government. In 1971 the Gibb Committee, in their report on
the situation of Aboriginals on pastoral leases in the Northern
Territory, recommended that special legislation be passed for the
incorporation of Aboriginal communities. Prime Minister McMahon
announced in January 1972 that the Federal Government proposed to
investigate ways of finding a simple flexible form of incorporation
of Aboriginal communities (2)
The issue was raised again in 1973 by Justice Woodward when
making recommendations to the Whitlam Government on the subject of
land rights policy. In his First Report (July 1993) and Second
Report (April 1974) Mr Justice Woodward pointed to the need for
special system of incorporation for Aboriginal groups. In his
Second Report he set out the following important principles to be
observed in formulating legislation for Aboriginal corporations
:
(a) the legislation must be simple, so that those
who are working under it can readily understand it;
(b) it must be flexible, so as to cover as wide a
range of situations and requirements as possible;
(c) it should, as far as possible, make provision
for Aboriginal methods of decision-making by achieving consensus
rather than by majority vote;
(d) it must contain simple provisions for control
of the situation if things go wrong within an organisation through
corruption, inefficiency, outside influences or for other reasons;
and
(e) it should be so framed as to avoid taxation of
any income that has to be devoted to community
purposes(3)
A bill was introduced into the Federal Parliament in the latter
half of 1975 but lapsed as a result of the double dissolution of
Parliament in November 1975. The new parliament passed the Bill the
next year with the Minister for Aboriginal Affairs, the Hon. Ian
Viner MP, stressing who the legislation would eliminate the need
for communities to work through the complexities of State and
Territory legislation. The Minister also made it clear that the new
incorporation procedure would help Aboriginal bodies form an
acceptable legal personality for the purpose of receiving
Government grants.
The Aboriginal Councils and Associations Act (ACA) was
assented to on 15 December 1976. It came into operation on 14 July
1978 following amendments assented to on 22 June 1978.
In 1989 Graham Neate examined the working of the ACA Act and the
Registrar's Office and made some recommendations in his Report
to the Registrar of Aboriginal Corporations on the Review of the
Aboriginal Councils and Associations Act 1976.
In 1992, in response to the Graham Neate s review and
recommendations the Government made changes to the ACA Act in the
Aboriginal Councils and Associations Amendment Act 1992.
The changes were designed to tighten the regime of Indigenous
incorporation with the aim of increasing accountability.
In 1994 the Government, as a second stage in their response to
the Neate Report, tabled further amendments which would have
established a new Australian Indigenous Corporations Commission
which could prosecute people for contravening the Act and other
laws relating to fraud and dishonesty. The Aboriginal and Torres
Strait Islander Commissioners ( ATSIC ) asked the Minister not to
go ahead with these amendments and asked for a review instead.
Consultation with Indigenous bodies had indeed revealed concerns
over the proposed amendments and discontent with the operations of
the Act in general.
In October 1995 the Minister for Aboriginal and Torres Strait
Islander Affairs, The Hon. Robert Tickner, announced he was
commissioning the Australian Institute of Aboriginal and Torres
Strait Islander Studies to conduct a review of the Act (the
web-site of the Office of the Registrar of Aboriginal Corporations
( ORAC ) says it was ATSIC that did the commissioning). The review
team was to be headed by Dr Jim Fingleton.
In 1996 Dr Fingleton produced the Final Report
Review of the Aboriginal Councils and Associations Act 1976. . He
concluded:
the Aboriginal Councils and Associations Act
1976 is too prescriptive to allow bodies to incorporate in a
culturally appropriate way in particular with respect to the key
matters of a group s structure and decision making processes. Much
of the Act s present inflexibility can be attributed to
requirements aimed at making groups more accountable, but
indigenous groups are usually faced with a range of different
accountability requirements, not all necessarily compatible with
each other. The approach currently taken under the Act confuses
financial and procedural accountability with the achievement of
program objectives, and this has led to undue emphasis on the
enforcement of compliance with statutory requirements. Outcomes in
delivery of essential services have not been improved under this
approach, often leading to the proliferation phenomenon, where
communities respond to poor service delivery by setting up new
corporations.
Fingleton s report made many other legislative and
administrative recommendations, but no changes were made to the ACA
Act or the basic administrative arrangements as a result of the
Fingleton Report.
In November 2000 the Acting Registrar commissioned an internal
review of the Act to:
determine its capacity to meet the contemporary
corporate governance needs of Aboriginal and Torres Strait Islander
people; and
identify areas for possible legislative reform and
possible changes to the regulations to more adequately met these
corporate governance needs.
In January 2002 the Review Team issued a
Summary Consultation Paper and
The full Consultation Paper outlining the major issues,
suggesting changes to the Act and offering examples of possible new
structural models. The Final Report and
Recommendations was released in December 2002.
Following the tabling of the above report a process of drafting
reforms to the Act began.
On 15 January 2003 Minister Vanstone announced in a
media release:
The Government intends to introduce legislation to
reform the ACA Act to improve the effectiveness of Indigenous
organisations for the benefit of their communities.
The legislation will reform the incorporation and
supervisory powers of the Registrar of Aboriginal Corporations to
ensure better governance and transparency.
The proposed reforms have been developed after
extensive consultations with people involved in running Indigenous
corporations. .
The need for reform is clear. . The ACA Act was
enacted more than 25 years ago as a method of incorporating mostly
not for profit Indigenous organisations. . However, it has failed
to keep pace with subsequent developments in company law and
accountability requirements given the size and numbers of
Indigenous corporations today.
The reforms will deliver:
Rationalisation of the number of corporations
through a focus on pre-incorporation scrutiny and support for
alternatives to incorporation;
Conferencing opportunities to encourage agencies
to resolve co-ordination issues;
Accredited training for Directors of Corporations
and members;
Expanded dispute assistance in the form of an
improved members complaints service, information and opinion
service and supported referrals for mediation;
Improvements to existing information about
Indigenous corporations and their health to support better
regulation, and also assist members and funding bodies; and
A rolling program of healthy corporation checks
tailored to Indigenous corporations, coupled with more streamlined
responses to critical problems, in order to fully protect critical
assets and funds held by corporations.
On a web page of the Office of the
Registrar of Aboriginal Corporations ( ORAC or the Registrar ) last
updated 15 March 2005, there is a
Summary of Proposed Reforms.
In response to the question, Why reform
the Act the ORAC web-site reports the following at http://www.orac.gov.au/about_orac/legislation/reform_act.aspx
:
The reforms aim to promote good governance and
management, and create opportunities for innovation and best
practice to occur within Indigenous corporations. Important changes
to the ACA Act will allow for modernised corporate governance
practices and accountability standards, improve security for
funding bodies, creditors and other parties doing business with
Indigenous corporations, as well as provide flexibility for groups
and communities to design the corporation's constitution.
The ORAC web-site also reports the following:
The major finding of the review was that the
special incorporation needs of Indigenous people should be met
through a statute of incorporation tailored to the specific
incorporation needs of Indigenous people. The review recommended a
thorough reform of the ACA Act by enactment of a new Act. The
review recommended that the new act provide Indigenous people with
key facilities of a modern incorporation statute such as the
Corporations Act. The review also recommended that the new Act
provide special forms of regulatory assistance to support
contemporary standards of good corporate governance. The review
also concluded that the ACA Act was out-of-date and suffered from a
large number of technical shortcomings to the point that the ACA
Act itself had become a source of disadvantage for Indigenous
people.
The preamble states that the law is intended to be a special law
for the descendants of the original inhabitants of Australia . This
means it is enacted under the race power sections 51(xxvi) of the
Constitution. The law is not settled on whether the race power has
to be used beneficially.(4)
The law is also intended to be a special measure for the
advancement and protection of Aboriginal peoples and Torres Strait
Islanders under paragraph 4 of Article 1 of the Convention for
the Elimination of Racial Discrimination ( CERD ) and the
Racial Discrimination Act 1975 ( RDA ), which is the
formulation required to bring the provisions under the external
affairs power of the Constitution (section 51(xxix). To qualify as
a special measure , however, the High Court found in Gerhardy v
Brown that the legislative provisions must confer a benefit on
and secure adequate advancement of the people to whom the special
measures are directed and, in determining whether they do this, the
wishes of the beneficiaries ..... are of great importance (perhaps
essential) .(5)
The Bill does not rely on the corporations head of power in the
Constitution.
Chapter 1 provides an overview of the Act for easy
reference.
Clause 1-25 sets out the objects of the
Act.
Clause 1-30 creates the Office of the Registrar
of Aboriginal and Torres Strait Islander Corporations (the
Registrar ) within the Department administering the Act.
Clause1-35 notes that interpretative provisions
are contained in Chapter 17.
Part 1.2 provides an overview of the Act.
Chapter 2 deals with what an ATSI corporation
is, the registration procedure and its effects, and decisions on
applications to register. In particular it distinguishes between
the new categories of a small, medium and large corporation.
The procedural and documentary requirements for registration are
mandatory and more onerous than under the ACA Act. . The clear
intent is to ensure that persons involved in the corporation, as
under the Corporations Act, are willing participants who have given
informed consent and are aware of their obligations. In enacting
the principles of good corporate governance, much of the simplicity
of the current registration procedures has been put aside.
Clause 21-1 covers the specific registration
requirements. In contrast to the ACA Act, there are mandatory
requirements relating to the provision of:
- directors details including all former given and family names
and a written declaration from that person that s/he is eligible to
be a director of a ATSI corporation (clause
21-1(3))
- copies of written consents by all persons listed as members,
directors, the contact person, and secretary (clause
21-5).
Clause 21-10 gives the Registrar
the right to seek other information which, if not forthcoming, may
mean the application is treated as withdrawn.
Clause 26-1 provides that an application for
registration may be successful if the basic requirements for
registration are met, and the Registrar is satisfied that it is
more appropriate that the corporation be registered under this Bill
than the Corporations Act, and that registration will not be
contrary to the public interest. Registration may be more
appropriate under the Corporations Act:
where a proposed corporation would operate as a
very large trading corporation with complex subsidiary arrangements
(6)
Apart from providing the necessary documentation,
Division 29 sets out the basic requirements for
registration:
- a minimum number of members set at five unless otherwise
exempted by the Registrar (see Chapter 3,
clause 77-5);
- the required percentage of Indigeneity to ensure a majority
(clause 29-5); and
- members to be at least 15 years of age (clause
29-10); and
- compliance with the pre-incorporation requirements
(clause 29-15) and internal governance rules
(clause 29-20).
This minimum age was chosen, according to the Explanatory
Memorandum, for several reasons:
Given that young people are a significant and
growing demographic component of the Aboriginal and Torres Strait
Islander population, this allows for membership of younger persons
to support earlier access to participation in corporations, and
leadership opportunities. The age of 15 was determined because this
is when people are eligible to participate in the Community
Development Employment Projects (CDEP) program, one of the
Commonwealth s major funded programs for Indigenous people. In
addition, corporations providing CDEP services form a significant
class of current ACA Act corporations.(7)
While this may be the case, it is unclear whether these young
people will be given adequate support in understanding their role
as members, a role which may bring a range of obligations including
liability for debts and liabilities of the corporation (see
Division 147). Notably, there is provision in the
Bill for corporations to provide that members be older than 15
years and also that the Registrar provide appropriate education and
training (see Chapter 16, although there is no special mention of
training or guidance for minors) In contrast, the Corporations Act
does not set an age limit for members.
Clause 29-15 details the pre-incorporation
requirements which require that 75% of members must approve the
application, the proposed constitution, the internal governance
rules, the directors and secretary. In addition:
- the internal governance rules must meet the standards set out
in clause 66-1 (clause 29-20(1))
- the constitution must be lodged with the Registrar before a
decision on registration is made (clause
29-20(2)); and
- the name of the corporation must comply with clause
85-1 (clause 29-25).
Clause 26-5 gives leeway to the Registrar to
register a corporation if the application is incomplete or contains
errors.
Clause 26-10(1) provides that
registration may also be approved even if the Registrar is not
satisfied that the corporation has the minimum number of members,
or not met the age or pre-incorporation requirements. This is
despite the Explanatory Memorandum s commentary that the
pre-incorporation requirement is meant to ensure readiness for
incorporation in order to avoid problems that:
can lead to corporate failure and communities at
risk of being left without essential services.(8)
Presumably if the Registrar is not satisfied that the
application suggests readiness , the Registrar can seek further
information under clause 21-10 as noted above.
Clause 26-10(2), in contrast, requires strict
compliance with:
Clause 32-5 provides that an unsuccessful
applicant will be notified in writing and invited to make the
necessary amendments to ensure registration.
Under Clause 21-1(e), an application must state
whether it is expected that the corporation will be a small, medium
or large corporation but it is the Registrar who will make the
final determination as to size at the time of registration
(clause 37-1) or thereafter (clause
37-5). The classification determines the corporation s
reporting requirements and whether it must have a registered office
and secretary: see Note to clause 37-1(1).
The Explanatory Memorandum details the background to
this new set of criteria:
This is consistent with recommendations of the
review which highlighted the importance of reporting requirements
better targeted to the corporation s circumstances, particularly
size. The review used the following example: a small, passive
land-holding body undertaking little or no activity is unlikely to
have the capacity or the need to meet complex reporting
requirements; however, a large, well funded corporation should be
able to recruit appropriate qualified personnel to enable it to
deal with more comprehensive reporting requirements. The Bill
provides for corporations to be streamed as small, medium or large.
This is similar to provisions in the Corporations Act that allow
for small and large proprietary companies to have differential
reporting requirements.(10)
The criteria for each size is based on income, assets and the
number of employees of the corporation and any entities it
controls, all of which will be prescribed in the Regulations
(clause 37-10). Notably, under clause
37-10(4), native title rights and interests held by a
registered native title body corporate are to be disregarded in
determining the value of its assets. The Explanatory
Memorandum states:
This section is designed to remove uncertainty as
at the present time, there is no clear process for determining the
value of native title rights and interests.(11)
It also avoids:
any possibility that a corporation only holding or
managing native title rights and interests might be determined as
large for reporting purposes.(12)
Clause 37-5(5) requires the Registrar to notify
a corporation if its classification changes. There is provision in
the Act, under Chapter 15, Division
617, for review of classification decisions by the
Registrar and after such internal review, external review by the
Administrative Appeals Tribunal.
Part 2-5 covers the effects of registration.
Once registered, those who have consented to be members and act as
a director, secretary or contact person, take on those official
roles (Clause 42-10(1)).
Where an application does not specify a contact person or the
nominated person has not consented, specific provision is made for
the applicant to become the contact person. (Clause
42-10(2) and (3)). According to the Explanatory
Memorandum, these new sections have been introduced to
overcome what has been a significant problem of non-compliance
under the ACA Act where there is no contact person named in the
application, and the corporation does not notify of a contact
person at a later date. (13)
Clauses 60-1 and 60-5 provide for a system of
replaceable rules. This is consistent with the Corporations Act,
but an ATSI corporation must also have a constitution in English
which must, at a minimum, contain the objects and name of the
corporation and a dispute resolution process (clause 66-1).
. The corporation may include other matters in its
constitution, including any replaceable rules which it has modified
or replaced. . The constitution must be lodged with the Registrar
(clause 69-1).
Clause 63-1 sets out the internal governance
rule requirements an ATSI must follow a conforming Constitution,
replaceable rules and any other rules dealing with internal
governance in the constitution. .
The Explanatory Memorandum states:
While the Corporations Act does not require a
corporation to have a constitution, the Bill requires all
corporations to have a constitution written in English because it
has proven to be a critical tool in supporting transparent
governance practices in corporations and providing clear guidance
to the corporation and its members on the rules by which the
corporation must operate. As the constitution has legal force as a
contract it is a requirement for the constitution to be written in
English to support legal certainty. Consistent with the ACA Act,
the Bill will provide that the corporation will be required to
lodge the constitution with the Registrar, resulting in the
constitution being a public document. This will allow funding
bodies and other stakeholders access to the constitution, and
supports transparency in internal governance.(14)
Clause 69-5
provides an overview of how a registered constitution may be
changed, by the corporation itself (which must then be lodged with
the Registrar), a court, the Registrar or a special administrator.
. Clause 69-35 provides that the Registrar may
change an ATSI corporation constitution on its own initiative if an
ATSI corporation is not meeting internal governance requirements or
is engaging in oppressive conduct. . This represents a key
difference to the ACA Act. The Explanatory Memorandum
states:
Many corporations experience difficulty in holding
meetings, getting sufficient attendance to meet quorum
requirements, and therefore to make changes to their
constitution.(15)
The 2002 Review recommended that the Registrar should no longer
play a role in approving the constitution of proposed corporations
to ensure that a flexible approach is taken to them. In particular,
the review criticised the requirements in the ACA Act that rules
must not be unreasonable or inequitable and must make sufficient
provision to give members effective control over the running of the
corporation.(16)
In response, ORAC states:
The Bill requires the Registrar to approve a
corporation s rules to ensure that there is defined and determined
set of rules that apply to a corporation.
The Register is very important since records
keeping can be difficult for many corporations.
Domestic and international research, such as the
Harvard Project on American Indian Economic Development from
Harvard University, shows that corporations that are designed to
suit the particular circumstances of their members and communities,
and that reflect local processes and decision-making, have a
greater chance of success.(17)
Part 3.3 deals with
minimum numbers of members. Clause 77-5 provides
an ATSI corporation must have a minimum of 5 members subject to
Registrar exemptions. The ACA Act requires that corporations have a
minimum number of 25 members other than corporations established to
hold land or to operate as businesses.(18) Notably
clause 29-10 sets out that a corporation meets the
age of member requirement if each member of the corporation is at
least 15 years of age. In contrast, the ACA Act restricts
membership to persons over the age of 18 (note Minimum age of
members above).
Part 3.4 deals with
names and name changes of an ATSI corporation, which must
specifically identify itself as such. .
Clause 96.1 sets
out the legal capacities and powers of an ATSI corporation,
mirroring sections 124, 126 and 127 of the Corporations
Act.
Clause 104-1 deals
with assumptions third parties are entitled to make when dealing
with an ATSI corporation, mirroring sections 128 and 129 of the
Corporations Act.
Clause 115-5
provides for a document access address, rather than a registered
office, for small and medium corporations that may not have the
resources to maintain a registered office. A large ATSI corporation
is required to have a registered office, which is based on section
142 of the Corporations Act (clause
112-5).
This chapter deals with membership and observer eligibility. An
ORAC fact sheet notes that there are significant differences
between membership of an ATSI corporation and a corporation
governed by the Corporations Act.(19) For example, some
types of companies, a member may have a proprietary interest
associated with being a member, that is, ownership of shares in the
company. Members of an ATSI corporation will not have any
proprietary interest in their corporation and are not shareholders.
ATSI corporations will be similar to public companies limited by
guarantee where the liability of members is limited to an agreed
amount.(20)
Corporations will be able to distribute profits to members if
permitted by the corporate constitution.
A member will normally be an Indigenous person aged over 15
(clause 141-20). The corporation may impose other
restrictions on membership - e.g. being part of a particular
Indigenous group.
Under proposed clause 158-5,
an ATSI corporation can also have observers (akin to associate
members in the ACA and Corporations Act).
An important change is that under the Bill the Registrar no
longer has the ability to refuse incorporation if the constitution
does not allow members to have effective control of the
corporation. . The Explanatory Memorandum states the
rationale for changes to the effective control principle to be:
The ACA Act provides very few bases on which
members can protect their rights. One provision the ACA Act relies
on is the principle of effective control by the members in general
meetings. This requires the Registrar to refuse incorporation if
satisfied that the constitution is unreasonable or inequitable or
does not allow the members effective control in running the
association. This provision has been problematic as it is unclear
what effective control means and is not an obvious indicator of
good governance for Aboriginal and Torres Strait Islander
corporations. It also does not provide adequate protection of
members rights in all circumstances. Members remedies under this
Bill are therefore brought into line with the more extensive
statutory provisions available under the Corporations
Act.(21)
The 2002 review recommended that membership should be limited to
Indigenous people and their dependants. This recommendation is not
implemented in the Bill. Instead, a majority of members (and
directors) must be Indigenous under the Bill (clause
29-5) but non-indigenous members are allowed as a
minority. This is because the definition of an ATSI person in the
Dictionary (clause 700-1) includes a body
corporate prescribed by name in regulations . Proposed clause
150-30 sets out how membership can be cancelled if
a member is not an ATSI person if they were elected as such.
The Government explained why the recommendation was not adopted
in the following manner:
Permitting non-Indigenous membership improves
flexibility for corporations which is often important to ensure
that services can be provided to non-Indigenous people such as
spouses and adopted and step children. In some places Indigenous
corporations are the only providers of essential services so it
also allows non-Indigenous residents who maybe served by the
corporation to become members if the constitution allows
it.(22)
Corporate
Members
The review also recommended not allowing corporate members,
which was not incorporated into the Bill:
ORAC has considered the issue further and
concluded that maximising flexibility and providing Indigenous
people with the key facilities of a modern incorporation statue was
more important than the issues identified by the
review.(23)
Chapter 5 of the Bill sets out the regime for
meetings in ATSI corporations. Some of the rules relating to
meetings are replaceable rules they may be replaced by the
corporation s constitution, whilst others cannot be replaced. Rules
which can be replaced will have noted in their headings in the Bill
that they are replaceable rules .
Clause 201-5 provides that directors must call
and arrange to hold a general meeting where such a meeting is
requested by 5 members or 10% of members (whichever number is the
greatest).
Clause 201-10 allows directors to apply to the
Registrar for permission to deny a request for a meeting under
clause 201-5 where the directors resolve that the request is
frivolous or that it would not be in the interests of the members
as a whole.
Clause 201-40 provides that 5 members, or 10%
of the members of a corporation (whichever is the greater) may move
a motion at a general meeting.
Clause 201-65 provides that a general meeting
may be held at two or more venues using any technology that gives
the members as a whole a reasonable opportunity to participate.
This provision stems from a recommendation by the Review. It takes
account of the remoteness of many Aboriginal corporation
members.
Clause 201-145 requires that a general meeting
be held within 3 months after a corporation is registered.
Clause 201-150 of the Bill expressly requires
the holding of an annual general meeting within 5 months of the end
of a corporation s financial year. This accords with the
recommendation of the Review to clarify a requirement for an annual
meeting, such a requirement being not clear in the ACA Act. The
time to hold an AGM can be extended on application to the
Registrar: Clause 201-155.
Clause 204-1 provides that some resolutions can
be passed without a general meeting being held where all members
sign a document stating that they are in favour of the motion
put.
Clause 212-1 provides that the Constitution of
a corporation must specify how often directors meetings are to be
held.
Part 5-4 provides for the keeping of minutes. A
corporation is required to keep minutes of its general meetings and
directors meetings and the passing of any resolutions without a
meeting.
Part 5-5 provides for exemptions from the
operation of Chapter 5. The Registrar may, on
application or of his or her own motion, exempt a corporation from
the operation of the chapter, or from particular provisions of it.
Before making an exemption determination the Registrar must be
satisfied of either of the criteria listed in clause
225-20. Specifically, the Registrar must be satisfied that
the provisions of the Chapter would:
(a) be inappropriate in the circumstances, or
(b) impose unreasonable burdens.
This chapter draws heavily on provisions of the Corporations
Act.
Clause 246-5 provides that a majority of
directors of an ATSI corporation must:
- be Aboriginal and Torres Strait Islander persons
- ordinarily reside in Australia
- be members of the corporation,
- not be employees of the corporation.
Division 249 provides for resignation,
retirement or removal of directors. Clause 249-10
provides that a corporation may, by resolution in general meeting,
remove a director from office (despite any agreement or provision
of the corporation s constitution to the contrary).
Clause 249-10 provides that directors may
remove a director, but only where the director has failed without
reasonable excuse to attend 3 or more consecutive meetings.
Division 252 provides for remuneration of
directors. The basic rule, under clause 252-1, is
that, unless the constitution of a corporation provides otherwise,
the directors are not to be paid remuneration.
Clause 252-5 provides for disclosure of
directors remuneration. Where 5 members, or 10% of members of the
corporation (whichever is the greater), require disclosure, a
corporation must disclose remuneration and expenses paid to each
director.
Part 6-3 provides for the appointment of
secretaries and contact persons. An Aboriginal corporation that is
registered as a large corporation must have at least one secretary
(clause 257-5(1)). An Aboriginal corporation that
is registered as a small or medium corporation must have a contact
person (clause 257-2(2)).
Clause 257-20 provides that secretaries or
contact persons are to be appointed by the directors.
Part 6-4 provides for the duties and powers of
directors and other officers and employees of corporations. As well
as outlining directors duties and powers, this part provides for a
number of civil and criminal consequences where directors fail to
comply with those provisions.
Subclause 265-1(1) provides that directors or
other officers must exercise their powers and discharge their
duties with the degree of care and diligence that a reasonable
person would exercise if that reasonable person:
(a) were a director or officer of an Aboriginal and Torres Strait
Islander corporation in the corporation s circumstances; and
(b) occupied the office held by, and had the same responsibilities
within the corporation as, the director or officer.
The main issue relating to this, according to the Review, was
whether the Courts should be able to adjust the standard of care to
take into account the cross-cultural problems and the disadvantages
in terms of education, skill and experience which may be faced by
Indigenous officers. Arguments to this effect had previously been
considered by Christos Mantziaris (a member of the Review team) and
David Martin in their book Native Title Corporations: a legal
and anthropological analysis. The authors there speculated
that it might be argued that, in legislating for duties of
indigenous directors, the following factors should be taken into
account:
- poor standards of education within Australian Indigenous
society
- poor opportunities for the development of managerial skills and
poor understanding of financial concepts
- that election to the board may reflect the judgment by the
corporate membership as to the director s authority and position
within the Indigenous polity rather than a judgement about the
person s ability to perform the duties of the position
- that in corporations serving the needs of Indigenous groups
dispersed in a wide geographical region, the ability of directors
to convene board meetings and exercise oversight of the affairs of
the corporation may be more limited, and
- that the corporation has been formed in response to the
requirements of the Native Title Act 1993 or funding body
policy rather than on a truly voluntary basis, so that board
members may have accepted appointments under conditions where to
refuse would have occasioned hardship for the Indigenous group
served by the corporation.(24)
The authors note, however, that such arguments have not been
accepted in relation to passive directors (such as spouses of
business people who are made directors of family companies) or
honorary directors of non-profit organisations. The Review team
took the view that the potential disadvantage of lowering the
standard of the duty of care (by taking account of Indigenous
issues) outweighed the benefits. The Review team suggested that a
compromise could be to include a business judgement rule and this
suggestion has been followed in the Bill.
Subclause 265-1(2) applies the business
judgement rule to subclause (1), which has the result that
subclause (1) is taken to be complied with if the director or
officer makes a business judgement in good faith for a proper
purpose, without having a material personal interest in the
outcome, is adequately informed and rationally believes the
judgement to be in the best interests of the corporation.
Clause 265-5 imposes a duty on directors or
other officers to exercise their powers and discharge their duties
in good faith in the best interests of the corporation and for a
proper purpose.
Clause 265-10 imposes a prohibition on
directors, other officers and employees of corporations improperly
using their position to gain an advantage for themselves or to
cause detriment to the corporation.
Clause 215-15 prohibits directors, officers or
employees who obtain information in that capacity, from using the
information to gain an advantage for themselves or to cause
detriment to the corporation.
Acts by directors, officers or employees, done in good faith and
in the belief that doing or refraining to do the act is necessary
to ensure that the corporation complies with a Native Title
legislation obligation, do not contravene clauses 265-1, 265-5(1),
265-10(1) or 265-15(1), nor do they breach a person s equivalent
duties at common law or in equity (clause
265-20).
Subclause 265-25(1) makes it an offence for a
director or other officer to, recklessly, or intentionally
dishonestly, fail to exercise their powers in good faith in the
best interests of the corporation; or for a proper purpose. The
penalty for breach of this provision is a fine of up to $2000 or
imprisonment for up to 5 years, or both.
Subclause 265-25(2) applies the exemption for
offences against 265-25(1) where the act or omission was done in
good faith believing it necessary for compliance with Native Title
legislation.
Subclause 265-25(3) makes it an offence for a
director, officer or employee to use their position dishonestly
with the intention of directly or indirectly gaining an advantage
for themselves or someone else, or of causing detriment to the
corporation (or recklessly as to whether such advantage might be
gained, or such detriment caused). The penalty for breach of this
provision is a fine of up to $2000 or imprisonment up to 5 years,
or both.
Subclause 265-25(4) makes it an offence for a
director, officer or employee to dishonestly use information
obtained in that capacity with the intention of directly or
indirectly gaining an advantage for themselves or someone else, or
of causing detriment to the corporation (or recklessly as to
whether such advantage might be gained, or such detriment caused).
The penalty for breach of this provision is a fine of up to $2000
or imprisonment up to 5 years, or both.
Clause 265-35 provides that directors of wholly
owned subsidiaries of bodies corporate are taken to act in good
faith in the best interests of the subsidiary if the constitution
of the subsidiary expressly authorises the director to act in the
best interests of the holding body corporate, and the director so
acts, provided that the subsidiary is not insolvent at the time and
does not become insolvent because of the act.
Clause 265-45 provides that, where the
reasonableness of a director s reliance on information,
professional or expert advice arises in proceedings brought to
determine whether a director has performed a duty, the director s
reliance is taken to be reasonable if made in good faith and after
making an independent assessment of the information or advice.
Clause 265-50 makes directors liable for
actions of their delegates (see clause 274-10) except where they
believed on reasonable grounds that the delegate was reasonable and
competent and would exercise the power in conformity with the Act
and the corporation s constitution.
Clause 268-1 provides that directors who have a
material interest in a matter relating to the affairs of the
corporation must give the other directors notice of the interest
unless an exemption applies. Failure to do so attracts a fine of up
to 10 penalty units, 3 months imprisonment, or both.
Subclause 268-1(3) and clause
268-5 specify circumstances in which notice of an interest
is not required to be given.
Clause 268-20 prohibits a director who has a
material interest in a matter that is being considered at a
directors meeting from being present at the meeting or voting on
the matter. Breach of the provision attracts a fine of up to 5
penalty units. Clause 268-20 does not apply if the other directors
have resolved to allow the relevant director to be present and
vote, or if the Registrar has made a declaration under
clause 268-25 entitling the director to vote.
Clause 271-1 enacts the equivalent of section
197 of the Corporations Act. That section has been recently amended
as a result of the decision in Hanel v O Neill
[2003] SASC 409. For an explanation of the operation of section 197
see Jerome Davidson, Corporations
Amendment Bill (No. 1) 2005 , Bills Digest, No. 189,
Parliamentary Library, Canberra, 2004-05.
Clause 279-1 makes it an offence for a person
who is disqualified from managing an ATSI Corporation, to
participate in the making of decisions that affect the business of
a corporation; exercise the capacity to significantly affect a
corporation s financial standing or to instruct directors knowing
that they are accustomed to act in accordance with those
instructions or intending that they will do so. Contravention of
the section attracts a fine of up to 50 penalty units or 12 months
imprisonment or both.
Subclause 279-1(3) provides an exception to the
offence in subclause (1) where an act is done or not done in good
faith with the belief that it is necessary to comply with Native
Title legislation.
Subclause 279-1(4) provides a defence where a
person has permission to manage the corporation under 279-30 or
279-35 (granted by the Registrar or the Court respectively) and
acts within the terms of that permission.
Under the ACA Act, a person is disqualified from holding office
as a member of the governing committee of an incorporated
Aboriginal association where they had been convicted and
sentenced:
(a) if the offence involved fraud or
misappropriation of funds to imprisonment for 3 months or longer;
or
(b) in any other case to imprisonment for one year
or longer.(25)
The disqualification does not apply if 5 years have passed since
the date of conviction and the person is not in prison. The Review
team recommended that the disqualification provisions in the ACA be
replaced with the equivalent of Part 2D.6 of the Corporations Act.
That recommendation has been followed in the Bill. It should be
noted that the result is to make the disqualification provisions
substantially harsher than those under the ACA Act.
Clause 279-5 provides for automatic
disqualification. Disqualifying criteria include convictions (on
indictment) for offences that:
- concern the making of decisions that affect the business of a
corporation; or
- concern an act that has the capacity to significantly affect
the financial standing of a corporation; or,
- convictions (on indictment or otherwise) that:
- contravene this Act (Bill) and are punishable by imprisonment
for a period of greater than 12 months;
- involve dishonesty and are punishable by imprisonment for at
least 3 months; or
- convictions against the law of a foreign country that are
punishable for a period of imprisonment greater than 12
months.
The result of including as a disqualifying criterion, conviction
of offences punishable by imprisonment for 3 months is that
convictions for quite minor offences will give rise to an automatic
5 year disqualification. Whether this is appropriate in light of
the fact, frequently noted by the Review team, that Indigenous
persons arrest and imprisonment rates are significantly higher than
others, is a matter for debate.(26)
The attachment of the disqualification criterion to offences
punishable by a given sentence, rather than, for instance, by
reference to serving or having served a sentence of a given length,
as well as making the criterion harsher, also poses administrative
problems. This is because, rather than simply having to determine
whether a person has served or been sentenced to a given period of
imprisonment, the administrator must make an inquiry as to the
applicable maximum sentence in respect of particular offences. This
may not be straightforward especially in cases of overseas
convictions. Similar problems have influenced the change of
criterion for disqualification of prisoners from voting to one
based on sentence served, rather than on potential
sentences.(27)
The period of automatic disqualification runs, in the case of
someone whose conviction does not result in imprisonment, for five
years from the date of conviction. Where a sentence of imprisonment
is served as a result of the conviction, the period is 5 years from
the time the person is released from prison.
Also disqualified are persons who are undischarged bankrupts,
and persons who have executed personal insolvency agreements under
the Bankruptcy Act 1966 or similar laws and not fully
complied with the terms of the agreement.
Disqualification under the Corporations Act also has the effect
of disqualifying a person from managing an ATSI corporation.
Disqualifications can be extended by up to 15 years by the Court
on the application of the Registrar: Clause
279-10.
The Court may, on application by the Registrar, disqualify a
person from managing an ATSI corporation where that person has
contravened a civil penalty provision of this Act (Bill) or of the
Corporations Act: Clause 279-15.
The Court may also disqualify, for up to 20 years, where a
person has, within the last 7 years, been an officer of two or more
corporations (either ATSI corporations or Corporations Act
corporations) which have failed in circumstances specified in
subclause 279-20(2), and the Court is satisfied that the management
was wholly or partly responsible for the failure of the
corporation: clause 279-20.
Repeated contraventions of this Act (Bill) or the Corporations
Act can also give rise to disqualification by the Court, on
application of the Registrar: Clause 279-25.
The Registrar has power to disqualify for up to 5 years in the
circumstances outlined in clause 279-30.
Under clause 279-35, the Court has power to
grant leave to a disqualified person to manage an ATSI corporation,
but not if the person was disqualified by the Registrar under
clause 279-30 or 279-5(5), by reason of ASIC having disqualified
the person from managing a corporation under section 206F of the
Corporations Act.
Part 6-6 contains a regime for related party
benefits that is closely modelled on equivalent provisions in the
Corporations Act. Clause 284-1 provides that the
approval of the corporation s members is required before the
corporation gives a financial benefit to a related party. What
constitutes a related party is described in clause
293-1. Included are:
- entities that control an ATSI corporation (ie are related
parties of that corporation)
- directors of the corporation and their spouses
- directors of entities that control the corporation
- relatives and children of the above
The giving of a financial benefit is given a broad meaning under
clause 293-5. Examples are given in subclause 293-5(3):
- giving or providing the related party finance or property;
- buying an asset from or selling an asset to the related
party;
- leasing an asset from or to the related party;
- supplying services to or receiving services from the related
party;
- issuing securities or granting an option to the related
party;
- taking up or releasing an obligation of the related party.
There are a number of complex steps that a corporation is
required to comply with in obtaining member approval. These
provisions are modelled on equivalent provisions in the
Corporations Act which apply only to public companies. It can be
assumed that the resources of the latter in terms of their ability
to engage professionals to assist them in compliance generally
would outweigh those available to indigenous corporations. Though
recommending the issue of related party transactions be addressed,
the Review team noted that the provisions relating to related party
transactions in the Corporations Act may be more complex and
comprehensive than is required under the ACA Act. (28)
The Review team suggested that a simplified statement of the duty
might be adopted. This does not appear to have been done, with the
provisions in the Bill closely following those in the Corporations
Act. The necessity of including such a complex regime in this Bill
is open to question. Another option might be to apply this regime
only to large corporations , as defined in Chapter 7.
The reporting regime under the ACA Act is based largely on
external accountability that is, accountability to funding bodies.
The review team argued that this focus should shift to one of
internal accountability accountability of directors to the
corporation and of directors and the corporation to the
members.
The Review team also criticised the ACA Act for its failure to
distinguish between small and large corporations the reporting
requirements being too complex for small corporations and not
comprehensive enough for large corporations.(29) It is
stated in the Explanatory Memorandum to the Bill that the intention
is to distinguish, for the purposes of reporting requirements under
this Bill, between small, medium and large
corporations.(30) This is not specified in the Bill,
however, and will presumably be achieved by regulation or by
determination of the Registrar under Part 7-4.
Part 7-2 outlines certain records and documents
required to be kept by corporations. Corporations must keep, among
other things:
- an up-to-date copy of their constitution and written records
relating to names of their officers and its addresses
(clause 322-5); and
- records that correctly explain their transactions and financial
position and performance (clause 322-10).
Clause 327-1 provides that corporations must
prepare:
- a general report in relation to each financial year;
- any reports required by regulations (Division
333 provides for the regulations to require additional
reports);
- any reports required by the Registrar (Division
336 provides for the Registrar to require additional
reports).
These reports must be lodged with the Registrar.
Division 339 provides for the auditing of ATSI
corporation financial reports. A requirement for auditing of
particular reports may arise from provisions of the Bill,
regulations, or determinations by the Registrar (clause
339-5). The Division also sets out standards and
procedures for auditors, including a requirement for independence
(subdivision 339B).
Clause 342-5 requires corporations to give
copies of their annual financial reports or directors report to
each member.
Part 7-4 gives the Registrar power to exempt
from record keeping and reporting requirements. There is a
procedure for exemption on application by directors, corporations
or auditors, for the Registrar to make specific exemption orders
(clause 353-1). The Registrar also has power to
make exemption orders in respect of particular classes of
corporations (clause 353-10).
Part 7-4 provides a list of criteria to inform
the Registrar s decision in respect of exemption orders.
Clause 358-5 provides that the Registrar must have
regard to:
- whether the current reporting obligations make a report
misleading;
- whether the current reporting obligations are appropriate in
the circumstances; and
- whether the current reporting obligations impose unreasonable
burdens.
Further guidance is given, in subclauses
358-5(2) and (3), on the questions of what is
appropriate and unreasonable.
Clause 363-1 makes it an offence to fail to
take reasonable steps to comply with the record keeping and
reporting requirements. If the contravention is dishonest, the
offence is punishable by 2000 penalty units or imprisonment for up
to 5 years or both.
Part 7-8 provides for a regime for the
inspection of a corporation s books, and for their protection and
use in evidence.
There are a range of new offences and penalties for serious
contraventions of the Act. . In general, these reforms aim to:
Align penalties and fraud provisions with
mainstream corporations law.(31)
As further outlined in the Second Reading Speech:
The offences have been developed on the principle
that similar obligations should attract similar
consequences.(32)
The Registrar s greater enforcement powers means that the
Registrar now appears to more closely resemble a regulator rather
than a body whose primary purpose is to assist the capacity of ASTI
corporations.
This appears at odds with what the Review hoped would be
achieved: a flexible approach to the implementation and enforcement
of legislative requirements that would take into account the
special circumstances of Indigenous corporations (33)
and an emphasis on assistance.
The Review team is of the view that the role of
the Registrar as set out in the ACA Act should shift from its
current focus on compliance and enforcement, to more of a focus on
assisting Indigenous corporations achieve good corporate governance
through special regulatory assistance.(34)
The effect on those involved in Aboriginal and Torres Strait
Islander corporations is that this increased power and the new
range of offences exposes them to more and higher penalties.
It is unclear whether incorporation of many of the offences and
penalties in the Corporations Act is a sufficiently flexible
approach. There may be an issue as to whether steep monetary
penalties and/or imprisonment are appropriate measures in an Act
specifically designed for the administration of Aboriginal and
Torres Strait Islander corporations.
Listed in Chapter 8, clause
386-1, new civil penalty provisions relate to officers
duties, related parties rules, record keeping and report
requirements and insolvent trading. On finding there has been a
breach of any of these provisions, a court must make a declaration
of contravention setting out the exact nature of the contravention
including the person responsible, the nature of the conduct and the
corporation affected.
Clause 386-10 enables a court to impose a
pecuniary penalty order of up to $200,000 if on a declaration of
contravention being made it has also materially prejudiced the
interests of the corporation or its members, or the corporation s
ability to pay its creditors, or is otherwise serious .
Clause 386-15 provides that a court may order
that a person who has contravened a civil penalty provision
compensate a corporation for damage resulting from that
contravention. Such damage includes profits resulting from the
contravention which were made by any person .
Clause 386-20 sets out who may make
applications. The Registrar may apply for a declaration, a
pecuniary penalty or a compensation order. The corporation affected
by the contravention of a civil penalty provision may apply for a
compensation order only, although it is entitled to intervene in
applications initiated by the Registrar. Its intervention, however,
will not entitle it to make submissions on whether the declaration
or order should be made. . This clause does not exclude the
Director of Public Prosecutions from acting under its own
powers.
Clause 386-55 provides that, subject to certain
conditions, the Registrar can require a person to assist in civil
and criminal proceedings and seek a Court order to this effect.
(The Registrar s powers to demand assistance are further
strengthened by clause 566-20 of Chapter
13 which requires certain persons such as an employee of a
corporation to assist in a prosecution of that corporation.)
Clause 386-60 sets out grounds for relief for a
contravention or possible contravention of a civil penalty
provision. If the contravention relates to insolvent trading, the
circumstances to be taken into account include any actions the
person took to appoint an administrator or appoint a special
administrator.
Chapter 9 covers the lodgment of documents with
the Registrar and the maintenance of registers including the
Register of Aboriginal and Torres Strait Islander Corporations and
most significantly, the newly introduced Register of Disqualified
Officers. Significantly, strict liability offences enforce the
Registrar s right to demand relevant information for the purpose of
maintaining registers.
Clause 407-1 allows the Registrar to refuse to
receive or register documents if considered contrary to law, false
or misleading, incomplete or inaccurate or in contravention of the
Act, and to request appropriate amendments.
Clause 407-5 enables the Registrar to request
additional information from the person seeking to lodge the
document and a failure to provide this constitutes a strict
liability offence attracting a penalty of 50 penalty units. One
penalty unit is currently $110.
Similarly, clause 407-10 provides that, once
included on a register, on request by the Registrar a person must
provide within a reasonable period specified information about the
person if information is included on that register in relation to
the person thus allowing the Registrar to continually update
information. A failure to comply is a strict liability offence
attracting a 50 penalty unit fine and/or imprisonment for 12
months.
Clause 410-1 reinforces the Registrar s powers
in relation to the lodgment of documents. . On application by the
Registrar, a court may order compliance as well as costs to be
borne by the person who or corporation which failed to comply. A
contravention of a court order is a strict liability offence which
will result in a penalty of 50 penalty units and/or 12 months
imprisonment.
In order to ensure some procedural simplicity, clause
407-15 grants the Registrar discretion to accept telephone
or email notice of certain minor changes of detail such as
typographical errors. .
Clause 418-1 sets out the registers that the
Registrar is obliged to keep:
- the Register of Aboriginal and Torres Strait Islander
Corporations;
- the Register of Disqualified Officers; and
- such other registers as the Registrar considers necessary.
The Register of Disqualified Officers will
include names of all persons disqualified from managing Aboriginal
and Islander corporations under:
- clause 279-15 (contravention of civil penalty
provisions);
- clause 279-20 (insolvency and non-payment of
debts);
- clause 279-25 (repeated contraventions of the
Act); or
- clause 279-30 (Registrar s
power of disqualification),
and, where relevant, must contain all copies
of notices, orders and permissions lodged under those clauses.
.
Of this register, Senator the Hon. Amanda
Vanstone, Minister for Immigration and Multicultural Affairs and
Indigenous Affairs, has noted:
A new public register of disqualified directors
will be established to prevent people that have committed offences
from being recycled through other corporations.(35)
This register is similar to the requirement under section 1274AA
of the Corporations Act that ASIC keep a record of persons
disqualified from managing corporations. In effect, the registers
are complementary as a person disqualified under the Corporations
Act will also be disqualified from managing a corporation
registered under this Bill.(36) As with the ASIC
register which can be searched for prescribed information,
clause 421-1 of this Act provides for the
inspection and copying of records contained in the Register of
Disqualified Officers. Some documents are exempt from inspection
and production including reports lodged under Chapter
11 winding up provisions. A report by a special
administrator or an examiner appointed by the Registrar to examine
the corporation s books under clause 453-1 may
only be inspected with the consent of the corporation.
Chapter 10 covers regulation and enforcement
and specifically deals with the Registrar s regulatory powers which
have been extended to cover situations where a stalemate
exists.
Notably, clause 439-5 allows the Registrar to
convene meetings of interested persons to discuss matters that may
affect a corporation. According to the Explanatory
Memorandum:
This power reflects the fact that many problems
relating to the sustainability of Indigenous corporations require a
coordinated approach involving numerous government agencies and
funding bodies, at both Commonwealth and state levels, as well as
other creditors and corporations.(37)
A power currently held by the Registrar, to call a general
meeting for any purpose that the Registrar thinks relevant, is
retained under clause 439-10 subject to certain
procedural requirements. Under the Bill, the Registrar under
clause 439-15 has the additional power to call a
corporation s annual meeting if it has failed to do so. According
to the Explanatory Memorandum:
Both proposed sections 439-10 and 439-15 have been
included in the CATSI Bill to address problems where Indigenous
corporations have, for a variety of reasons, become incapacitated
and unable to call general meetings of any kind.(38)
This is presumably linked to the concern raised in the Review
that general meetings are often forums for the playing out of
political struggles and are sometimes ineffective in producing
binding outcomes as participants often go on to act in their own or
their group s or family s interest.(39) It is also
consistent with the Review s recommendations that there be
provision for some capacity for regulatory intervention to protect
members in situations where it was not possible for member to
enforce their rights.(40)
Clause 439-20 maintains the Registrar s power
to serve notice on directors of a corporation to undertake certain
action within a specified time if there are reasonable grounds for
suspecting that the directors have failed to comply with the Act or
there has been some irregularity in the affairs of the corporation.
The Explanatory Memorandum states:
As noted by the review, compliance notices
presently issued under this section [s 60A] are often used to
provide directors information about their obligations under the ACA
Act, as a means to ensure compliance with it. The review regarded
this as a positive administrative process which is intended to
achieve compliance with the Act through special regulatory
assistance measures.(41)
In general, the Review noted that the Bill must provide special
forms of regulatory assistance as it must distinguish itself from
the Corporations Act by providing something the Corporations Act
cannot provide. (42)
Under new subclauses (3) and (5), this special
regulatory assistance is also extended to circumstances where the
Registrar suspects on reasonable grounds that there may be grounds
for placing a corporation under special administration either at
that time or in the future.
As under the ACA Act, there are no penalty provisions relating
to a failure to comply with such notice but the new provision
specifically states that the issue of a notice does not preclude
the Registrar from taking other action under the Act.
In order to ensure enforcement, under clause
447-1 the Registrar may appoint an authorised officer to a
corporation. The Explanatory Memorandum provides the
following background:
The very remote location of many CATSI
corporations makes it necessary for the Registrar to be able to
appoint as an authorised office [sic] a suitable qualified person
who may not be a Commonwealth, state or territory employee or
official, such as a police officer. In such cases, it is
anticipated that the person will be a suitably qualified
professional such as a special administrator, auditor or accountant
who has been contracted to the Registrar to carry out functions
under the Bill.(43)
Clause 450-1 outlines the scope of the
Registrar s enforcement powers which may be relied upon for the
purposes of fulfilling the Registrar s duties; and to ensure
compliance with the Act or an alleged or suspected contravention of
the Act.
These powers extend to examining books and persons
(clause 453-1). In explaining the scope of the
Registrar s powers, the Explanatory Memorandum gives this
detailed commentary:
proposed section 453-1 is based on the existing
examination provision contained in section 60 of the ACA Act. . The
power was explained by the Federal Court in NAILSS v Registrar of
Aboriginal Corporations (1998) 54 ALD 55. The Court stated that the
purpose of section 60 is to obtain information to enable the
Registrar to carry out their statutory functions, including
prudential supervision of the operations and financial affairs of
incorporated Aboriginal associations. There is nothing which
requires that the Registrar have any particular concern before
exercising the power under section 60 to inspect documents and
obtain a report. Nor is there anything which requires that, if
there is a matter of concern, the exercise of the power under
section 60 be limited to that concern. As the Federal Court noted,
the concern might be the catalyst for a wider investigation into
the operations and financial affairs of the corporation as
disclosed by its documents. Consistent with Government policy, this
power is often used by the Registrar, with the consent of
corporations, to undertake diagnostic examination of corporations
in difficulty. . This special regulatory assistance is also
important in the context of capacity building for these
corporations.(44)
Whilst the Registrar need not have a particular concern before
exercising the power as the Explanatory Memorandum notes,
the new provision is broader in that the authorised officer
inspecting the books is not limited to drawing attention to any
irregularity in the operations or financial affairs of the
Association as under current section 60. Clause
453-1 covers a wider range of matters that the authorised
officer is to report including potential problems such as whether
circumstances are likely to occur or develop [which] may constitute
grounds for appointing a special administrator (paragraph
453-1(1)(e))
Clause 453-1 attracts an $1 100 penalty whereas
the penalty under the current section 60 is a fine not exceeding
$200. It is an offence of strict liability. . The ACA Act provides
that this penalty does not apply if the person has a reasonable
excuse but there is no such defence in the Bill.
Clause 453-5 sets out the Registrar s powers to
demand, subject to written notice and service conditions, the
production of books or attendance to answer questions. This is
similar to the current section 68 provision, but the Registrar will
now have the power to require a person to give answers under oath.
The previous penalty for failure to comply was $200 (section 69),
whereas the new penalty is $3 300 and/or 6 months imprisonment. It
is not an offence, however, if a person is not capable of complying
(subsection (7)); a provision similar to but
narrower than that provided in the current Act which allows that no
offence has been committed if the person has a reasonable excuse
(section 69(3)).
At the Registrar s disposal are powers under clause
456-1 to apply for a warrant to seize books that have not
been produced on request. In urgent cases where there is concern
that books may be destroyed, clause 456-15 allows
for an application and grant of a warrant by telephone or
electronic means.
The Registrar of Aboriginal Corporations has noted that under
the Bill the Registrar s power to seek the production of books or
to require a person to answer questions has been modernised and
aligned with the ASIC Act and similar legislative regimes.
(45) In contrast with the current section 70 which
entitles the Registrar to enter land or premises to examine, take
possession of, and copy books, without a warrant, the new warrant
provisions, whilst broadening the enforcement options available to
the Registrar, effectively limits the Registrar s power by
requiring the sanction of a magistrate be obtained before books can
be seized.
The present penalty for a contravention of section 70 is $1 500.
Under clause 461-1, the Registrar s new powers are
backed by heftier penalties for:
- obstructing or hindering an authorised officer or the execution
of a warrant ($11 000 and/or imprisonment for 2 years)
- intentionally or recklessly failing to provide all reasonable
facilities and assistance for the effective exercise of a warrant
($2 750 and/or imprisonment for 6 months), and
- obstructing or hindering the Registrar or disrupting a meeting
called by the Registrar ($5 500 and/or 1 year imprisonment).
Clause 461-5 makes it an offence
to give false information to an authorised officer or in relation
to information sought under a warrant. . A penalty of $11 000
and/or 2 years imprisonment applies.
Clause 461-10 makes it an
offence to conceal, destroy or alter a book relevant to an
investigation. A penalty of $22 000 and/or 5 years imprisonment
applies.
Clause 461-15 grants limited immunity for
self-incrimination, the background of which is set out in the
Explanatory Memorandum:
Proposed section 461-15 is based on section 68 of
the ASIC Act, which also restricts the provision of derivative use
immunity and provides use immunity for answers to questions, not
for documents produced. The enactment of more limited immunities
for ASIC and APRA followed extensive inquiries and empirical
research into the particular difficulties of corporate regulation
It was accepted that a full use and derivative use immunity would
unacceptably fetter investigation and prosecution of corporate
misconduct offences. In light of the Registrar s similar role as a
corporate regulator, a limited immunity is also justified
here.(46)
Disclosures of any breaches of the Act are encouraged by the
inclusion of specific whistleblower provisions under Part
10-5. Victimisation of a whistleblower is prohibited under
clause 469-5 with penalties of $2 750 and/or 6
months imprisonment attaching to such conduct, as well as provision
for compensation under clause 469-10.
This chapter sets out a regime for external administration which
is quite different to the Corporations Act, as the Registrar sets
out to give proactive regulatory assistance .
Under clauses 487-1 and 490-1,
the Registrar can appoint a special administrator with
comprehensive powers (clause 499-5) to deal with
corporate failure. This power can be used to provide a safety net
against the possibility of corporate failure, especially for
corporations providing essential services, infrastructure or
holding land.
The review recommended scrapping the Registrar s power to
appoint an administrator, and instead felt that the Registrar
should apply to a court for the appointment of a receiver under the
court s equitable jurisdiction. The Bill rejects this
recommendation but notes that a key improvement is that when a
corporation is put into special administration it is a reviewable
decision under the Bill .(47)
The grounds for placing a corporation under
special administration are also much broader than the grounds for
appointing a receiver. This allows early intervention once certain
risk factors are present. For example, a common risk factor is a
dispute between members and the board which has escalated to the
point that it is interfering with the operations of the
corporation. This is one of the grounds for placing a corporation
under special administration and is an important special
measure.(48)
Clause 526-5 sets
out the grounds on which an ATSI corporation may be wound up,
similar to section 461(1) of the Corporations Act. Clause
526-10 ensures that a corporation will not be wound up on
the basis of acts or omissions done to comply with Native Title
legislation.
The ACA Act relies on the
deregistration process set out in chapter 5A of the Corporations
Act. This is achieved by virtue of section 67 of the ACA
Act which incorporates relevant provisions of the Corporations Act
by reference.
In contrast the Bill contains its
own set of deregistration provisions (clauses 546-1 to
546-40) which essentially mirror the provisions in chapter
5A of the Corporations Act. The proposed clauses set out the
grounds and procedures for voluntary and Registrar-initiated
deregistration and for deregistration following amalgamation or
winding up. The Explanatory Memorandum at paras 5.524
5.532 summarises these provisions and makes direct reference to the
comparative provisions in the Corporations Act.
Clauses 551-1 to
551-40 provide arrangements for the handling of unclaimed
property and correspond to sections 1339-1343A of the Corporations
Act.
The Registrar s powers to ensure compliance are further
strengthened by Chapter 13 which details the
nature and penalties for offences relating to the making of false
or misleading statements.
Clause 561-1 provides for penalties of 200
penalty units and/or 5 years imprisonment for providing false or
misleading statements to the Registrar.
Under Clause 561-5, the same penalties apply to
an officer or employee of a corporation who knowingly provides
false information about the corporation to a director, auditor or
member of the corporation or the parent corporation
(subclause (1)). Lesser penalties of 100 penalty
units and/or 2 years imprisonment apply if the officer or employee
provided such information without taking reasonable steps to ensure
that it was correct (subclause (2)).
Clause 566-1 provides scope for increased
penalties to apply to corporations. If a body corporate is
convicted of an offence against the Act, a court may impose a fine
not exceeding 5 times the maximum amount that could otherwise be
imposed as a pecuniary penalty for that offence. The
Explanatory Memorandum notes that this is based on section
1312 of the Corporations Act:
As, like the Corporations Act, most of the
offences in the Bill are only capable of being committed by a
corporation the broader corporate multiplier in proposed section
566-1 is required Penalty levels, which are not multiplied by the
operation of proposed section 566-1, will still be relevant with
respect to natural persons for example, in some cases, a natural
person who may be convicted of aiding and abetting a corporation to
commit a primary offence.(49)
Clause 566-5 sets out the nature of penalty
notices. . Penalty notices allow the Registrar to notify an alleged
offender, in writing, that an offence has been committed. If the
person fails to act to prevent the continuance of the offence or
fails to pay the prescribed penalty, proceedings may be
instituted.
The proposed penalty notice scheme, like other
infringement notice schemes, is intended to provide an efficient
and cost-effective alternative to pursuing criminal sanctions
against a potential defendant A penalty notice scheme is also an
appropriate non-criminal alternative in the context of regulating
Indigenous corporations.(50)
Chapter 14 is based on the current civil and
criminal jurisdictions and cross-vesting scheme in place under the
Corporations Act.
Clause 576-1 allows for both
lower and superior courts to grant relief in civil proceedings for
charges relating to negligence, default, breach of trust or duty,
by an ATSI corporation officer or employee, auditor, expert,
receiver or special administrator. A superior court also has the
power to grant relief, even if charges have not yet been
brought.
Clause 576-10 allows for appeals from decisions
by special administrators or other external administrators, such as
receivers. As the Explanatory Memorandum notes:
This is an important protection for creditors,
members, directors, employees and ATSI corporations
generally.(51)
A court can also intervene to prevent procedural irregularities
(clause 576-15) and to prevent financial and
property transactions (clause 576-20) further
protecting creditors and members.
Clause 576-25 is far broader than the current
section 61 which provides only that the Registrar may apply for an
injunction if in his or her opinion the Governing Committee of an
Association is not complying with the Act. Under the new provision,
[i]f a person has engaged, is engaging or is proposing to engage in
conduct that is or would contravene or attempt to contravene the
Act or aids, abets, counsels, procures, induces or attempts to
induce a person to contravene the Act, or directly or indirectly is
knowingly concerned in or party to such contravention, the
Registrar or a person whose interests have been or would be
affected, may apply for an injunction . This explicitly encourages
members, creditors and employees to take legal action rather than
relying on the Registrar.
Clause 581-1 entitles the Registrar to
intervene in any proceedings relating to matters under the Act.
Part 14-2 relates to the conduct of proceedings
and mirrors the Corporations Act. Amongst other matters, it covers
standard of proof (clause 581-10) and security for
costs (clause 581-20).
Similarly, Part 14-3 mirrors provisions in the
Corporations Act relating to courts and procedures. Clause
586-5 covers the jurisdiction of the Federal Court and
State and Territory Supreme Courts; clause 586-20
covers the jurisdiction of lower courts; and subdivision
586-C provides for the transfer of proceedings from one
jurisdiction to another. These provisions should enhance the
ability of an ATSI corporation to access Federal Court
jurisdiction. As the Explanatory Memorandum notes:
Under the ACA Act, the Federal Court had
jurisdiction which was comparably inaccessible for many ACA Act
associations and members.(52)
Chapter 15 provides for protection of certain
information, protection of the Registrar and other persons from
liability, review of the Registrar s decisions, fees, the power to
make regulations and forms for use under the Act.
Clause 604-5 defines protected information to
include information given to the Registrar or another person in
confidence in connection with the performance of a function of the
Registrar or the exercise of a power of the Registrar.
Clause 604-10 requires the Registrar to take
all reasonable steps to protect protected information from
unauthorised use or disclosure. . This is consistent with the
Information Privacy Principles under the Privacy Act
1988.
Clause 604-15 makes it an offence for a special
administrator for an ATSI corporation to use or disclose protected
information unless authorised. The penalty for contravention is up
to 2 years imprisonment.
Clause 609-1 protects the Minister, the
Registrar, a special administrator or a person acting under the
Registrar s authority from any civil liability for loss, damage or
injury as a result of the performance or exercise, in good faith,
of functions, powers or duties arising under the Bill.
Clause 617-1 lists 44 reviewable decisions
.
Where a person makes a reviewable decision, notice of the making
of the decision must be given to each person whose interests are
affected by the decision, together with advice of the person s
right to have the decision reviewed (clause
617-10). Subclause 617-10(3), however,
releases the decision maker from the requirement to give notice
where the decision maker determines that giving notice to the
person or persons is not warranted having regard to the cost of
giving notice and the way in which the person or persons are
affected by the decision . This is a very broad exemption
requirement that essentially gives the decision maker an unfettered
right to decide not to give an affected person or persons notice of
the decision and the right to have it reviewed. The appropriateness
of this is open to question.
Division 620 provides for a system of internal review.
Essentially this means that the Registrar can reconsider his or her
decision, by their own motion or on the application of an affected
person. Where the review arises as the result of an application by
an affected person, the Registrar must delegate the review function
to someone who was not involved in making the initial decision
(subclause 620-5(4)).
Clause 623-1 provides that an application may
be made to the Administrative Appeals Tribunal for review of a
decision that has been affirmed, varied or set aside upon internal
review by the Registrar.
Chapter
16 provides for the appointment of the Registrar and Deputy
Registrars and sets out the Registrar s functions and powers.
Similar to the ACA Act, the Registrar is to be appointed by the
Minister for a period of up to 5 years (proposed clause
653-1), however in contrast, the Registrar s pay and
conditions will be determined by the Remuneration Tribunal
(proposed clause 663-1) rather than under the
Public Service Act 1999.
The Registrar may appoint Deputy
Registrars (rather than the Minister making appointments as under
the ACA Act). Deputy Registrars are to be appointed under the
Public Service Act for up to 5 years (proposed clause
653-5).
The Minister may terminate the Registrar s appointment
for reasons of misbehaviour or physical or mental incapacity but
must terminate the appointment in certain circumstances
including bankruptcy or failure to disclose relevant interests
without reasonable excuse (proposed clause
663-10). Termination of a Deputy Registrar s appointment
occurs if he or she is no longer employed under the Public Service
Act or if the Registrar terminates it (proposed clause
663-15).
Proposed clause 658-1 sets out the Registrar s
functions. These functions include:
- administering the Act
- maintaining appropriate registers
- providing advice about registration, and internal governance of
corporations
- conducting public education programs, publicising information
and conducting research about registration and administration of
corporations
- assisting with the resolution of disputes and complaints
involving corporations
- developing policy, and
- any other functions as conferred by another law or as
prescribed by the regulations.
The Registrar must apply certain principles when performing his
or her functions or exercising his or her powers (clause
658-5). For example the Registrar must aim to administer
the Act in a way that facilitates and improves the effectiveness,
efficiency, sustainability and accountability of Aboriginal and
Torres Strait Islander corporations, and in a way that takes into
account Aboriginal and Torres Strait Islander tradition and
circumstances.
Clause 658-10 establishes the Registrar s
powers in broad terms. The Registrar has the power to do all things
necessary or convenient for the performance of the functions of the
office of the Registrar. More specific powers are set out in other
parts of the Bill.
Clause 68-1 specifies that the Registrar may
delegate in writing his or her powers or functions to a Deputy
Registrar, an SES employee in DIMIA, or suitably experienced APS
employees within the Registrar s Office. A Deputy Registrar may
sub-delegate powers in writing to SES employees within DIMIA or
appropriate APS employees within the Registrar s Office
(clause 668-5).
Concluding Comments
It is difficult to determine from the legislation itself whether
the indigenous community will benefit from the changes to the legal
regime overall. . There may be no simple trade-off between
simplicity and good governance outcomes.
Peter McKerrow has commented in the Indigenous Law
Bulletin that the Bill:
assumes a high degree of literacy and legal and
financial sophistication.
While large companies can afford professional
advice and insure their directors from legal risks, Indigenous
corporations in rural and remote Australia have limited access to
this support. . Without that support, the Bill may effectively
deter the participation and involvement of Indigenous people in
local corporations.(53)
Submissions by Land Councils to the Senate Inquiry voice
concerns over the time and cost of the transitional
arrangements(54) and general concerns that the Bill will
add to the over-regulation ATSI bodies already face.(55)
Concerns are also raised about compatibility of the Bill s
obligations with the special requirements already faced by Native
Title bodies.(56)
Constitutional questions may also arise over whether provisions
which are stricter on indigenous persons involved with an ATSI
corporation than a non-indigenous person regulated by the
Corporations Act could still be held to be a beneficial special
measure .
The Northern Land Council raised this as an issue in their
submission to the Senate Legal and Constitutional Committee
Inquiry:
It may be accepted that many Indigenous groups,
particularly in remote areas, suffer disadvantage particularly in
relation to basic reading, writing and administrative skills such
as are required to administer a corporation. Discriminatory
provisions directed at resolving this disadvantage may be justified
as a special measure.
It is evident, however, that the Bill is
predicated on the additional proposition that Indigenous
corporations are prone to maladministration or corruption. For
example, the second reading speech explains that cl 284-1 is
intended to act as a strong deterrent to nepotistic behaviour (para
5.308).
Similarly when announcing the Bill on 23 June 2005
the Minister for Indigenous Affairs, Amanda Vanstone, announced a
rolling program of governance audits and explained that the Bill
included strengthened accountability provisions because Indigenous
people are sick and tired of being the victims of unscrupulous or
incompetent administrators.
The NLC accepts that maladministration and
corruption, whether or not in the Indigenous sector, is
unacceptable. It has not been established, however, that this
concern is endemic or widespread regarding Indigenous
corporations.(57)
A pressing question is whether the new bill will offer the
simplicity which has repeatedly been recommended in reports over
the last 30 years, and which offered the initial justification for
special legislation. At 531 pages the Bill is a large, potentially
intimidating document. It is also a well organised stand-alone
document which does not require the user to constantly refer to the
Corporations Act as the ACA Act did. Smaller corporations will have
less reporting requirements.
In Chapter 2, it is clear that the procedural and documentary
requirements for registration are mandatory and more onerous than
under the current Act. Some areas of the Bill dealing with issues
such as related third party benefits in Chapter 6 seem to be
unnecessarily complicated for small to medium ATSI corporations. .
The intent is to ensure that persons involved in the corporation,
as under the Corporations Act, are willing participants who have
given informed consent and are aware of their obligations. In
enacting the principles of good corporate governance, much of the
simplicity of the current registration procedures has been put
aside.
Generally a theme of the Bill is greater responsibility and
accountability mechanisms applying to directors and managers. There
are more onerous reporting requirements for larger corporations. .
A public register of disqualified directors will be created. .
Offences and penalties have generally been brought into line with
the Corporations Act and are significantly greater than under the
ACA Act.
The Bill significantly increases the powers of the Registrar for
Aboriginal Corporations. . The Registrar will provide governance
audits , provide training and dispute resolution, and can check
subsidiaries and trusts. The Registrar may change an ATSI
corporation constitution on his or her own initiative if an ATSI
corporation is not meeting internal governance requirements or is
engaging in oppressive conduct. . The Registrar can appoint a
special administrator with special power to deal with corporate
failure, especially where it could threaten essential services of a
remote community. . However, persons affected by key decisions of
the Registrar can now have decisions reviewed by the AAT.
One aspect of the Bill which might be of concern is that the
minimum membership age has been set at 15, without any further
guidance as to whether these minors will receive special training
by the Registrar or special consideration with regard to the
offences provisions.
- Mr Warren Entsch, House of Representatives, Debates 23
June 2005, p. 12
- Quote from p. 9 of Graham Neate s Report to the Registrar
of Aboriginal Corporations on the Review of the Aboriginal Councils
and Associations Act 1976.
- Aboriginal Land Rights Commission, Second Report, para.
332.
- In Kartinyeri v Commonwealth (1998) 152 ALR 540 ( the
Hindmarsh Island Bridge case )
the High Court found that the passing of the Bridge Act
which amended the Heritage Protection Act was a valid
exercise of power. The Court discussed but did not decide whether
the race power could only be used beneficially. . See further G.
Triggs, Australia
s Indigenous Peoples and International Law , Melbourne
University Law Review, Vol. 16 [1999] and N. Pengelly,
Before
the High Court , Sydney Law Review, Vol. 20, No. 1,
1998.
- (1989-90) 159 CLR 70 per Justice Brennan, at p. 135.
- Explanatory Memorandum, p. 34,
para 5.36.
- ibid., p. 35, para 5.42.
- ibid., p. 36, para 5.43.
- ibid., p. 35, para 5.38.
- ibid., p. 20, para 4.5.
- Explanatory Memorandum, p. 36,
para 5.50.
- Registrar of Aboriginal Corporations, Fact Sheet: Native
Title.
- Explanatory Memorandum, p. 37,
para 5.56.
- ibid., at pp. 38-39.
- ibid., p. 40.
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the Review some differences , 2005.
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the Corporations Act some differences , 2005.
- See clause 29-5 regarding indigenous
membership requirements on p. 8 of the Digest.
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the Corporations Act some differences , 2005.
- ibid.
- Explanatory Memorandum, at p.
21.
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the Review some differences , 2005.
- op. cit.
- Christos Mantziaris and David Martin, Native Title
Corporations: a legal and anthropological analysis, The
Federation Press, Sydney 2000, Part 2, p. 104.
- ACA Act, s. 49B.
- See, for instance, Part 3 of the Review Final Report, p.
61.
- The Commonwealth Electoral Act 1918 was so amended, partly to
make administratively workable the reporting requirements imposed
on prison authorities : Explanatory Memorandum, Electoral and
referendum Amendment Bill (No. 2) 1995, p. 3.
- Review Final Report, p. 189.
- ibid,. p. 218.
- ibid., p. 24.
- Senator Amanda Vanstone, Minister for Immigration and
Multicultural and Indigenous Affairs (12 August 2005)
http://www.atsia.gov.au/media/ruddock_media02/r02078_a.htm
- Second Reading Speech, the Corporations (Aboriginal and Torres
Strait Islander) Bill 2005.
- A Modern Statute for Indigenous Corporations: Reforming the
Aboriginal Councils and Associations Act, Final Report of the
Review of the Aboriginal Councils and Associations Act 1976 (Cth),
Dec 2002, http://www.orac.gov.au/publications/legislation/final_report.pdf,
p. 13, para 57.
- ibid., p. 121. para 594.
- Senator the Hon Amanda Vanstone, Media Release, New
bill to benefit thousands of Aboriginal corporations , 23 June
2005
- Explanatory Memorandum, p. 63,
para 5.301. See Clause 279-5(5).
- ibid., p. 26, para 4.42.
- ibid., pp 80-81, para 5.438.
- A Modern Statute for Indigenous Corporations, op cit, p. 5,
paras 18, 20.
- ibid., pp. 10 11, para 47, 48.
- Explanatory Memorandum, p. 81,
para 5.439.
- A Modern Statute for Indigenous Corporations, op cit, p.
2.
- Explanatory Memorandum, p. 81,
papa 5.443.
- ibid., p. 82, para 5.447.
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the ACA Act some differences , 2005.
- Explanatory Memorandum, p. 86,
para. 5.468
- ibid., p. 86, para. 5.468
- Registrar of Aboriginal Corporations, Fact Sheet:
The Bill and the Review some differences , 2005.
- Explanatory Memorandum, p. 97
para 5.544
- ibid., p. 97, para 5.545.
- ibid., p. 98, para 5.552.
- ibid., p. 29, para 4.60.
- Peter McKerrow, A Note on the Corporations (Aboriginal and
Torres Strait Islander) Bill 2005 , Indigenous Law
Bulletin, Vol. 6, Issue 15, November 2005, pp. 12.-14 at p.
13.
- North Queensland Land Council Native Title Representative Body
Aboriginal Corporation
Submission No. 4 to the Senate Legal and Constitutional
Committee Inquiry into the provisions of the Corporations
(Aboriginal and Torres Strait Islander) Bill 2005, 26 September
2005.
- Coalition of Aboriginal Legal Services of NSW (COALS)
Submission No. 3 to the Senate Legal and Constitutional
Committee Inquiry into the provisions of the Corporations
(Aboriginal and Torres Strait Islander) Bill 2005, 26 September
2005; AIATSIS
Submission No. 10 to the Senate Legal and Constitutional
Committee Inquiry into the provisions of the Corporations
(Aboriginal and Torres Strait Islander) Bill 2005, 26 September
2005.
- AIATSIS
Submission No. 10 to the Senate Legal and Constitutional
Committee Inquiry into the provisions of the Corporations
(Aboriginal and Torres Strait Islander) Bill 2005, 26 September
2005.
- Northern Land Council
Submission No. 13 to the Senate Legal and Constitutional
Committee Inquiry into the provisions of the Corporations
(Aboriginal and Torres Strait Islander) Bill 2005, 4 October
2005.
Jerome Davidson, Katrina Gunn, Mary Anne Neilsen and
Susan Harris Rimmer
Law and Bills Digest Section
John Gardiner-Garden
Social Policy Section
31 January 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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