Bills Digest no. 82 2005–06
Corporations (Aboriginal and Torres Strait Islander)
Bill 2005
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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