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Additional Comments by the Australian Labor Party
1.1
Labor Senators support the findings of the majority report and the
recommendations regarding:
-
ensuring ORAC has adequate funds to assist corporations with the
transition to the new incorporation regime;
-
monitoring the interaction between the bills and other
legislation, particularly the Native Title Act; and
-
amending sections 201-5 and 201-10 of the 2005 Bill to restrict
the right of members to request directors call a general meeting to voting
members.
1.2
Labor Senators remain concerned, however, about the level of regulation
and the extent of the Registrar's powers contained in the 2005 Bill. The
Indigenous sector – those directly affected by this legislation – shares our
concerns. For example, the KLC described the 2005 Bill as 'a highly detailed
and prescriptive legislative enactment'.[1]
Similarly, the CLC noted that:
By trying to cover the field, from the largest commercial
corporation or service provider through to the smallest community corporation
or small land owning corporation, the draftsperson has created a ‘default
setting’ of intense regulation, followed by strict liability for failure to
comply and subsequent penalty which may then be softened upon application to
the Registrar for exemption.[2]
1.3
When asked if he preferred the existing framework under the ACA Act or
the new model the 2005 Bill proposes, Professor Mick Dodson told the committee:
Let us stay with what we have, because the new bill is far too
complex.[3]
1.4
Labor Senators note the Registrar's evidence regarding the flexibility
and protections contained in the Bill.[4]
Labor Senators also note that the recently introduced Transitional Bill extends
that flexibility in appropriate ways.
1.5
Nevertheless, there can be no certainty that these Bills reflect an
appropriate level of regulation which is workable for the specific conditions
of the Indigenous corporate sector until they come into operation and have been
tested in practice. The impact of the legislation on the Indigenous corporate
sector needs to be tracked closely. Labor Senators therefore recommend that for
the next three years ORAC should monitor and report on the operation of the new
legislation and stakeholder satisfaction with the new regime.
1.6
The transitional period of 2 years provides some reassurance that
Indigenous corporations will have time to adapt to the new regime. However, it
is notable that the Indigenous corporate sector was given less than a week to
raise any concerns about the Transitional Bill and the Amendment Bill. This
limited timeframe explains the absence of submissions in relation to those
bills.
1.7
The Parliamentary Amendments to be introduced during cognate debate
resolve some of the concerns raised during the inquiry. However, the
Parliamentary Amendments were initially provided to the committee in confidence
and only made public when the committee was finalising its report. As a
result, the Indigenous corporate sector and other interested parties were not
given a genuine opportunity to examine and comment on them.
Recommendation 1
1.8
To ensure that the impact of the legislation is closely monitored and
with appropriate transparency, the Labor Senators of the committee recommend
that for the next three financial years ORAC include in its annual report a
review of the operation of the new legislation and results of a statistical
survey of stakeholder satisfaction.
Senator Patricia Crossin
Deputy Chair
Senator Joseph Ludwig
Senator Linda Kirk
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