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This is a Bill, not an Act. For current law, see the Acts databases.
Presented and read a first time
Corporations (Aboriginal and Torres Strait Islander) Bill 2005
No. , 2005
(Immigration and Multicultural and Indigenous Affairs)
A Bill for an Act to provide for Aboriginal and Torres Strait Islander corporations, and for related purposes
Corporations (Aboriginal and Torres Strait Islander) Bill 2005 No. , 2005
Corporations (Aboriginal and Torres Strait Islander) Bill 2005 No. , 2005
Contents
Chapter 1--Introduction 2
Part 1-1--Preliminary 2
Division 1--Preliminary 2
1-1 Short title 2
1-5 Commencement 2
1-10 Act binds Crown 2
1-15 Geographical application of Act 2
1-20 Act applies regardless of residence, place of formation etc. 3
1-25 Objects of this Act 3
1-30 Office of the Registrar of Aboriginal and Torres Strait Islander Corporations 3
1-35 Interpretative provisions 3
Part 1-2--Overview of Act 4
Division 6--Overview of Act 4
6-1 Overview of Act 4
6-5 Aboriginal and Torres Strait Islander corporations 4
6-10 Basic features of an Aboriginal and Torres Strait Islander corporation 4
6-15 Members and observers 5
6-20 Meetings 5
6-25 Officers 5
6-30 Record keeping, reporting requirements and books 5
6-35 Civil consequences of contravening civil penalty provisions 6
6-40 Lodgments and registers 6
6-45 Regulation and enforcement 6
6-50 External administration 6
6-55 Deregistration and unclaimed property 6
6-60 Offences 7
6-65 Courts and proceedings 7
6-70 Administration 7
6-75 Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations 7
6-80 Interpreting this Act 7
Chapter 2--Aboriginal and Torres Strait Islander corporations 8
Part 2-1--Introduction 8
Division 16--Introduction 8
16-1 What this Chapter is about 8
16-5 Meaning of Aboriginal and Torres Strait Islander corporation 8
Part 2-2--Applications for registration of an Aboriginal and Torres Strait Islander corporation 9
Division 21--Applications for registration of an Aboriginal and Torres Strait Islander corporation 9
21-1 Application for registration 9
21-5 Matters to accompany application 11
21-10 Registrar may seek further information 11
Part 2-3--Decisions on applications 12
Division 26--Registrar to decide application 12
26-1 Registrar to decide application 12
26-5 Registrar may grant application if application is incomplete etc. 13
26-10 Registrar may grant application if some basic requirements are not met 13
26-15 Registrar not to register trade unions etc. 13
Division 29--What are the basic requirements for registration? 15
29-1 Minimum number of members requirement 15
29-5 Indigeneity requirement 15
29-10 Age of members requirement 15
29-15 Pre-incorporation requirement 15
29-20 Internal governance rules requirement 16
29-25 Name requirement 17
Division 32--Decisions on applications 18
32-1 Successful applications 18
32-5 Unsuccessful applications 18
Part 2-4--Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation 20
Division 37--Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation 20
37-1 Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation 20
37-5 Registrar may alter registered size of corporation after registration 21
37-10 Small, medium and large corporations 22
37-15 When an Aboriginal and Torres Strait Islander corporation controls an entity 23
37-20 Counting employees 24
37-25 Accounting standards 24
Part 2-5--Effects of registration 25
Division 42--Effects of registration 25
42-1 Corporation comes into existence on registration 25
42-5 Corporation's name 25
42-10 Members, directors, corporation secretary and contact person of corporation 25
42-15 Registered office 26
42-20 Document access address 26
42-25 Corporation may have common seal 26
42-30 Vesting of property in corporation on registration 27
Chapter 3--Basic features of an Aboriginal and Torres Strait Islander corporation 29
Part 3-1--Introduction 29
Division 52--Introduction 29
52-1 What this Chapter is about 29
Part 3-2--Rules dealing with the internal governance of corporations 30
Division 57--Introduction 30
57-1 What this Part is about 30
Division 60--What are the replaceable rules and when do they apply to a corporation? 32
60-1 Replaceable rules 32
60-5 Corporation's constitution can modify or replace replaceable rules 32
60-10 Effect of constitution and replaceable rules 33
60-15 Failure to comply with replaceable rules 33
60-20 Modification by regulations 33
60-25 List of replaceable rules 33
Division 63--What are the internal governance rules of a corporation? 36
63-1 Meaning of internal governance rules 36
Division 66--What are the internal governance rules requirements? 37
66-1 Requirements 37
66-5 Meaning of cover the matters provided for in the replaceable rules 38
Division 69--Constitutions and amendment and replacement of constitutions 40
Subdivision 69-A--Constitution on registration 40
69-1 Constitution of an Aboriginal and Torres Strait Islander corporation 40
Subdivision 69-B--Constitutional changes after registration 40
69-5 Overview--ways a constitution may be changed 40
69-10 Meaning of constitutional change etc. 41
69-15 Extra requirements for constitutional change in constitution 42
69-20 Corporation to lodge copy of constitutional changes 42
69-25 Special administrator to lodge copy of constitutional changes 43
69-30 Registrar to determine if constitutional change should be registered 43
69-35 Registrar may change an Aboriginal and Torres Strait Islander corporation's constitution on own initiative 44
69-40 Date of effect of constitutional change 46
Division 72--Other matters concerning constitutions etc. 47
72-1 Registrar may direct corporation to lodge constitution 47
72-5 Corporation must provide governance material to members 47
72-10 Constitution may limit powers 48
Part 3-3--Minimum number of members of Aboriginal and Torres Strait Islander corporations 49
Division 77--Minimum number of members of Aboriginal and Torres Strait Islander corporations 49
77-1 What this Part is about 49
77-5 Minimum number of members requirement 49
77-10 Registrar may exempt if appropriate and reasonable to do so 50
77-15 Registrar may determine a different number to number requested 51
77-20 Earlier determination taken to be revoked 51
77-25 Notice to be given 51
Part 3-4--Names 52
Division 82--Introduction 52
82-1 What this Part is about 52
Division 85--What names may a corporation have? 53
85-1 Corporation's name requirements 53
85-5 Available names 54
85-10 Acceptable abbreviations 55
85-15 Using a name and ICN on documents 56
85-20 Exception to requirement to have ICN on receipts 57
85-25 Regulations may exempt from requirement to set out information on documents 57
Division 88--How is a corporation's name changed? 58
88-1 Corporation changing its name 58
88-5 Registrar's power to direct corporation to change its name 58
88-10 If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate 59
88-15 If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate 60
88-20 Registrar must issue new certificate if name changes 60
88-25 Effect of name change 61
Part 3-5--Corporation powers and how they are exercised 62
Division 93--Introduction 62
93-1 What this Part is about 62
Division 96--What are a corporation's powers? 63
96-1 Legal capacity and powers 63
Division 99--How are a corporation's powers exercised? 64
99-1 Agent exercising a corporation's power to make contracts etc. 64
99-5 Execution of documents (including deeds) by the corporation itself 64
Part 3-6--Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make 66
Division 104--Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make 66
104-1 Entitlement to make assumptions 66
104-5 Assumptions that can be made under section 104-1 67
104-10 Information available to the public from Registrar does not constitute constructive notice 69
Part 3-7--Registered office or document access address 70
Division 109--Introduction 70
109-1 What this Part is about 70
Division 112--Registered office 71
112-1 General 71
112-5 Corporation to have registered office 71
112-10 Registrar may change address of registered office to a director's address 72
112-15 Corporation's name must be displayed 73
112-20 Address of registered office etc. 73
Division 115--Document access address 75
115-1 Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations 75
115-5 Corporation to have document access address 75
115-10 Registrar may change document access address to a director's address 76
115-15 Registrar may direct corporation to change the location of its document access address 77
115-20 Address of document access address 77
Part 3-8--Service on Aboriginal and Torres Strait Islander corporations 79
Division 120--Service on Aboriginal and Torres Strait Islander corporations 79
120-1 Service on Aboriginal and Torres Strait Islander corporation 79
Chapter 4--Members and observers 81
Part 4-1--Introduction 81
Division 130--Introduction 81
130-1 What this Chapter is about 81
Part 4-2--Members 82
Division 135--Introduction 82
135-1 What this Part is about 82
Division 138--Who is a member of an Aboriginal and Torres Strait Islander corporation? 83
138-1 Meaning of member 83
Division 141--Membership of Aboriginal and Torres Strait Islander corporations 84
Subdivision 141-A--Introduction 84
141-1 Overview 84
Subdivision 141-B--Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation 84
141-5 Minimum number of members requirement 84
141-10 Indigeneity requirement 84
141-15 Age of members requirement 85
Subdivision 141-C--A person's eligibility for membership of an Aboriginal and Torres Strait Islander corporation 85
141-20 Eligibility for membership 85
141-25 Corporation may have other eligibility requirements for membership 86
Division 144--How to become a member of an Aboriginal and Torres Strait Islander corporation 87
144-1 How does a person become a member? 87
144-5 Application to corporation 87
144-10 Determination of applications for membership 87
144-15 Fees for membership and being an observer 89
Division 147--Obligations of members 90
147-1 Obligation to contribute on winding up 90
147-5 Corporation may impose other member obligations 90
147-10 Liability of corporation members 90
Division 150--How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation? 91
Subdivision 150-A--General 91
150-1 Cessation of membership 91
150-5 Resolution of disputes 91
Subdivision 150-B--Resignation of membership 92
150-10 Resignation 92
Subdivision 150-C--Cancellation of membership 92
150-15 General 92
150-20 Member not eligible for membership etc. (replaceable rule--see section 60-1) 93
150-25 Member not contactable 95
150-30 Member is not an Aboriginal and Torres Strait Islander person 96
150-35 Member misbehaves 97
Division 153--Can there be different classes of members? 98
153-1 Different classes of members 98
Part 4-3--Observers 99
Division 158--Observers 99
158-1 What this Part is about 99
158-5 Observers 99
Part 4-4--Protection of members' interests 101
Division 163--Rights and remedies to protect interests of members 101
163-1 Rights and remedies 101
Division 166--Oppressive conduct of affairs 102
166-1 Grounds for Court order 102
166-5 Orders the Court can make 102
166-10 Who can apply for an order? 104
166-15 Requirement for person to lodge order 104
Division 169--When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation? 105
169-1 Bringing, or intervening in, proceedings on behalf of a corporation 105
169-5 Applying for and granting leave 106
169-10 Substitution of another person for the person granted leave 107
169-15 Effect of ratification by members 108
169-20 Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 109
169-25 General powers of the Court 109
169-30 Power of the Court to make costs orders 110
Division 172--What protections apply to variations or cancellations of class rights? 111
172-1 Varying and cancelling class rights 111
172-5 Certain actions taken to vary rights etc 112
172-10 Variation, cancellation or modification without unanimous support of class 112
172-15 Variation, cancellation or modification with unanimous support of class 113
Division 175--When may a member inspect a corporation's books? 114
175-1 Order for inspection of books of corporation 114
175-5 Ancillary orders 115
175-10 Disclosure of information acquired in inspection 115
175-15 Corporation or directors may allow member to inspect books (replaceable rule--see section 60-1) 116
Part 4-5--Registers of members and former members 117
Division 180--Registers of members and former members 117
180-1 Aboriginal and Torres Strait Islander corporations to maintain register of members 117
180-5 Information on the register of members 117
180-10 Aboriginal and Torres Strait Islander corporations to maintain register of former members 118
180-15 Information on the register of former members 118
180-20 Location and inspection of registers 118
180-25 Right to inspect and get copies 119
180-30 Aboriginal and Torres Strait Islander corporation to make register of members available at AGM 120
180-35 Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members 120
180-40 Correction of register of members 121
180-45 Evidentiary value of registers 121
Division 183--Use of information on the register of members 122
183-1 Use of information on register 122
Chapter 5--Meetings 124
Part 5-1--Introduction 124
Division 193--Introduction 124
193-1 What this Chapter is about 124
Part 5-2--General meetings 125
Division 198--Introduction 125
198-1 What this Part is about 125
Division 201--What are the rules concerning general meetings? 126
Subdivision 201-A--Who may call general meetings? 126
201-1 Director may call meetings (replaceable rule--see section 60-1) 126
201-5 Request by members for directors to call general meetings 126
201-10 When must directors comply with members' request? 127
201-15 When must a requested meeting be held? 128
Subdivision 201-B--How to call general meetings 128
201-20 Amount of notice of general meetings 128
201-25 Notice of general meeting to members, officers and observers 129
201-30 Auditor entitled to notice and other communications 131
201-35 Contents of notice of general meeting 131
Subdivision 201-C--Members' rights to put resolutions etc. to general meeting 132
201-40 Members' resolutions 132
201-45 Notice of members' resolutions 133
201-50 Members' statements to be distributed 133
Subdivision 201-D--Holding general meetings 135
201-55 Purpose 135
201-60 Time and place for general meeting 135
201-65 Technology 135
201-70 Quorum 135
201-75 Chairing general meeting (replaceable rule--see section 60-1) 136
201-80 Auditor's right to be heard at general meetings 137
201-85 Adjourned meetings 137
Subdivision 201-E--Proxies 138
201-90 Who may appoint a proxy (replaceable rule--see section 60-1) 138
201-95 Rights of proxies 138
201-100 Appointing a proxy 139
201-105 Proxy documents 141
201-110 Body corporate representative 141
Subdivision 201-F--Voting at general meetings 142
201-115 How many votes a member has (replaceable rule--see section 60-1) 142
201-120 Objections to right to vote (replaceable rule--see section 60-1) 142
201-125 How voting is carried out (replaceable rule--see section 60-1) 143
201-130 Matters on which a poll may be demanded 143
201-135 When a poll is effectively demanded 143
201-140 When and how polls must be taken (replaceable rule--see section 60-1) 144
Subdivision 201-G--First general meeting and annual general meetings 144
201-145 Corporation must hold first general meeting within 3 months of registration 144
201-150 Corporation must hold AGM 145
201-155 Extension of time for holding AGM 145
201-160 Business of AGM 146
201-165 Questions and comments by members on corporation management at AGM 146
201-170 Questions by members of auditors at AGM 146
Division 204--Resolutions without a general meeting 147
204-1 Circulating resolutions 147
204-5 Resolutions of 1 member corporations 148
Part 5-3--Directors' meetings 149
Division 209--Introduction 149
209-1 What this Part is about 149
Division 212--What are the rules concerning directors' meetings? 150
212-1 Constitution to provide for meetings 150
212-5 Calling directors' meetings (replaceable rule--see section 60-1) 150
212-10 Use of technology 150
212-15 Chairing directors' meetings (replaceable rule--see section 60-1) 150
212-20 Quorum at directors' meetings 151
212-25 Passing of directors' resolutions (replaceable rule--see section 60-1) 151
Division 215--Resolutions and declarations without meetings 152
215-1 Circulating resolutions of corporation with more than 1 director (replaceable rule--see section 60-1) 152
215-5 Resolutions and declarations of 1 director corporation 152
Part 5-4--Minutes of meetings 154
Division 220--Minutes of meetings 154
220-1 What this Part is about 154
220-5 Minutes 154
220-10 Members' access to minutes 156
Part 5-5--Exemption from operation of this Chapter 158
Division 225--Exemption from operation of this Chapter 158
225-1 What this Part is about 158
225-5 Exemption from the provisions of this Chapter 158
225-10 Registrar may make determination even if application is incomplete 159
225-15 Registrar's power to make class determinations 159
225-20 Criteria for determinations 160
Chapter 6--Officers 161
Part 6-1--Introduction 161
Division 235--Introduction 161
235-1 What this Chapter is about 161
Part 6-2--Appointment, remuneration and cessation of appointment of directors 162
Division 240--Introduction 162
240-1 What this Part is about 162
Division 243--Number of directors 163
243-1 Minimum number of directors 163
243-5 Maximum number of directors 163
Division 246--Appointment of directors 164
246-1 Eligibility for appointment as a director 164
246-5 Majority of director requirements 164
246-10 Consent to act as director 165
246-15 Corporation may appoint a director (replaceable rule--see section 60-1) 165
246-20 Directors may appoint other directors to make up a quorum (replaceable rule--see section 60-1) 165
246-25 Term of appointment 166
246-30 Alternate directors (replaceable rule--see section 60-1) 167
246-35 Effectiveness of acts by directors 167
Division 249--Resignation, retirement or removal of directors 168
249-1 How does a person cease to be a director? 168
249-5 Director may resign 168
249-10 Removal by members 168
249-15 Removal by other directors 170
249-20 Removal by general meeting 172
Division 252--Remuneration of directors 173
252-1 Remuneration 173
252-5 Members may obtain information about directors' remuneration 173
Part 6-3--Appointment of secretaries and contact persons 176
Division 257--Appointment of secretaries and contact persons 176
257-1 What this Part is about 176
257-5 Requirement to have a secretary or contact person 176
257-10 Who may be a secretary or contact person 177
257-15 Consent to act as secretary or contact person 177
257-20 How a secretary or contact person is appointed 178
257-25 Director to be contact person in certain circumstances 178
257-30 Contact person must pass on communications received 178
257-35 Secretary must pass on communications received 179
257-40 Effectiveness of acts by secretaries 179
257-45 Terms and conditions of office for secretaries (replaceable rule--see section 60-1) 180
257-50 Terms and conditions of contact person's appointment (replaceable rule--see section 60-1) 180
Part 6-4--Duties and powers of directors and other officers and employees 181
Division 262--Introduction 181
262-1 What this Part is about 181
Division 265--General duties 182
265-1 Care and diligence--civil obligation only 182
265-5 Good faith--civil obligations 183
265-10 Use of position--civil obligations 183
265-15 Use of information--civil obligations 184
265-20 Acts done to comply with Native Title legislation obligations 184
265-25 Good faith, use of position and use of information--criminal offences 185
265-30 Interaction of sections 265-1 to 265-25 with other laws etc. 186
265-35 Directors of wholly-owned subsidiaries 187
265-40 Responsibility of secretaries for certain contraventions 187
265-45 Meaning of reasonable reliance on information or advice provided by others 188
265-50 Responsibility for actions of delegate 189
Division 268--Duties in relation to disclosure of, and voting on matters involving, material personal interests 190
268-1 Material personal interest--director's duty to disclose 190
268-5 Interest as common law holder of native title 192
268-10 Director may give other directors standing notice about an interest 192
268-15 Interaction of sections 268-1 and 268-10 with other laws etc. 194
268-20 Restrictions on voting 194
268-25 Registrar's power to make declarations and class orders 196
Division 271--Duty to discharge certain trust liabilities 198
271-1 Directors liable for debts and other obligations incurred by corporation as trustee 198
Division 274--Powers of directors 199
274-1 Powers of directors (replaceable rule--see section 60-1) 199
274-5 Negotiable instruments (replaceable rule--see section 60-1) 199
274-10 Delegation 199
274-15 Right of access to corporation books 200
Part 6-5--Disqualification from managing corporations 202
Division 279--Disqualification from managing corporations 202
279-1 Disqualified person not to manage corporations 202
279-5 Automatic disqualification 203
279-10 Extension of period of automatic disqualification 205
279-15 Court power of disqualification--contravention of civil penalty provision 205
279-20 Court power of disqualification--insolvency and non-payment of debts 206
279-25 Court power of disqualification--repeated contraventions of Act 207
279-30 Registrar's power of disqualification 208
279-35 Court power to grant leave 210
Part 6-6--Member approval needed for related party benefit 212
Division 284--Need for member approval 212
284-1 Need for member approval for financial benefit 212
284-5 Consequences of breach 212
Division 287--Exceptions to the requirement for member approval 214
287-1 Remuneration and reimbursement for officer or employee 214
287-5 Benefit to or by closely-held subsidiary 215
287-10 Benefits to members that do not discriminate unfairly 216
287-15 Court order 216
Division 290--Procedure for obtaining member approval 217
290-1 Resolution may specify matters by class or kind 217
290-5 Corporation must lodge material that will be put to members with the Registrar 217
290-10 Requirements for explanatory statement to members 218
290-15 Registrar may comment on proposed resolution 219
290-20 Requirements for notice of meeting 219
290-25 Other material put to members 220
290-30 Proposed resolution cannot be varied 221
290-35 Voting by or on behalf of related party interested in proposed resolution 221
290-40 Voting on the resolution 222
290-45 Notice of resolution to be lodged 223
290-50 Declaration by court of substantial compliance 223
Division 293--Related parties and financial benefits 224
293-1 Related parties 224
293-5 Giving a financial benefit 225
Division 296--Interaction with other rules 227
296-1 General duties still apply 227
Part 6-7--Public information about directors, secretaries and contact persons 228
Division 301--Introduction 228
301-1 What this Part is about 228
Division 304--Information to be provided 229
304-1 Director, alternate director, secretary or contact person may notify the Registrar of resignation or retirement 229
304-5 Notice of name and address of directors and secretaries to the Registrar 229
304-10 Director, alternate director, secretary and contact person must give information to corporation 231
304-15 Address for officers 231
Division 307--Registrar may ask for information 233
307-1 Registrar's power to ask for information about person's position as director, secretary or contact person 233
Chapter 7--Record keeping, reporting requirements and books 234
Part 7-1--Introduction 234
Division 317--Introduction 234
317-1 What this Chapter is about 234
Part 7-2--Record keeping requirements 235
Division 322--Record keeping requirements 235
322-1 What this Part is about 235
322-5 Obligation to keep copy of constitution and records about officers, contact person, etc. 236
322-10 Obligation to keep financial records 236
322-15 Physical format 237
322-20 Place where records are kept 237
322-25 Director access 238
Part 7-3--Reporting requirements 239
Division 327--Overview of reporting obligations 239
327-1 Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge 239
Division 330--General report for each financial year 240
330-1 Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year 240
330-5 Contents of general report 240
330-10 General report to be lodged with Registrar 241
Division 333--Financial and other reports required by the regulations 242
333-1 What this Division is about 242
333-5 Regulations may require financial reports, directors' reports and other reports to be prepared 242
333-10 Contents of reports 243
333-15 Other requirements in relation to report 244
333-20 Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required 246
Division 336--Registrar may increase reporting requirements 247
336-1 Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation 247
336-5 Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation 249
Division 339--Audit of financial reports 252
Subdivision 339-A--Introduction 252
339-1 What this Division is about 252
339-5 Application of Division 252
339-10 When financial report required to comply with accounting standards 253
339-15 When audit required to be conducted in accordance with auditing standards 253
339-20 Lead and review auditors 253
339-25 Professional members of the audit team 254
Subdivision 339-B--Conduct of the audit 254
339-30 Auditor to form opinion 254
339-35 Auditor obligations in relation to auditing standards 255
339-40 Auditor's report 255
339-45 Other requirements in relation to auditor's report 256
339-50 Auditor's independence declaration 257
339-55 Audit working papers to be retained for 7 years 259
Subdivision 339-C--Qualification, experience and registration 262
339-60 Qualification and experience: individual auditor 262
339-65 Qualification and experience: audit firm 263
339-70 Registration requirements for appointment of company as auditor 264
Subdivision 339-D--Auditor independence 266
339-75 Independence of auditors: application of Corporations Act auditor independence provisions 266
339-80 Independence of auditors: alternative independence requirements 268
Subdivision 339-E--Auditor's powers and duties 268
339-85 Auditor's power to obtain information 268
339-90 Reporting to the Registrar 268
339-95 Assisting auditor 271
Subdivision 339-F--Appointment and removal of auditors 272
339-100 Appointment and removal of auditors 272
Division 342--Financial reporting to members 273
342-1 What this Division is about 273
342-5 Annual financial reporting to members 273
342-10 Deadline for reporting to members 274
Division 345--Consolidated financial report 275
345-1 Directors and officers of controlled entity to give information 275
345-5 Auditor's power to obtain information from controlled entity 275
345-10 Controlled entity to assist auditor 275
345-15 Application of sections 345-1 to 345-10 to entity that has ceased to be controlled 276
Division 348--Lodging reports 277
348-1 Lodging annual reports with the Registrar 277
348-5 Relodgment if report amended after lodgment 277
Part 7-4--Registrar may exempt from record keeping and reporting requirements 279
Division 353--Registrar may exempt from record keeping and reporting requirements 279
353-1 Registrar's power to make specific exemption order 279
353-5 Registrar may make determination even if application is incomplete 280
353-10 Registrar's power to make class orders 280
Part 7-5--Criteria for determining level of reporting requirements 281
Division 358--Criteria for determining level of reporting requirements 281
358-1 What this Part is about 281
358-5 Criteria for determinations about level of reporting requirements 281
358-10 Reporting obligations 282
Part 7-6--Sanctions for contraventions of record keeping and reporting requirements 284
Division 363--Sanctions for contraventions of record keeping and reporting requirements 284
363-1 Sanctions 284
Part 7-7--Modifications of record keeping and reporting requirements by regulations 285
Division 368--Modifications of record keeping and reporting requirements by regulations 285
368-1 Modification by regulations 285
Part 7-8--Books 286
Division 373--Introduction 286
373-1 What this Part is about 286
Division 376--When and where may books be inspected? 287
376-1 Inspection of books 287
376-5 Translations of instruments and books 288
376-10 Court may compel compliance 289
376-15 Admissibility of books in evidence 289
376-20 Form of books 289
376-25 Protection of books 290
376-30 Evidentiary value 290
376-35 Falsification of books 291
Chapter 8--Civil consequences of contravening civil penalty provisions 293
Division 386--Civil consequences of contravening civil penalty provisions 293
386-1 Declarations of contravention 293
386-5 Declaration of contravention is conclusive evidence 294
386-10 Pecuniary penalty orders 294
386-15 Compensation orders--civil penalty provisions 294
386-20 Who may apply for a declaration or order 295
386-25 Time limit for application for a declaration or order 296
386-30 Civil evidence and procedure rules for declarations of contravention and civil penalty orders 296
386-35 Civil proceedings after criminal proceedings 296
386-40 Criminal proceedings during civil proceedings 296
386-45 Criminal proceedings after civil proceedings 297
386-50 Evidence given in proceedings for penalty not admissible in criminal proceedings 297
386-55 Registrar requiring person to assist 297
386-60 Relief from liability for contravention of civil penalty provision 299
Chapter 9--Lodgments and registers 301
Part 9-1--Introduction 301
Division 396--Introduction 301
396-1 What this Chapter is about 301
Part 9-2--Lodgments with the Registrar 302
Division 401--Introduction 302
401-1 What this Part is about 302
Division 404--What is the form in which documents may be lodged? 303
404-1 Forms for documents to be lodged with the Registrar 303
404-5 Signing documents lodged with the Registrar 303
404-10 Documents lodged with the Registrar electronically 303
404-15 Relodging of lost registered documents 304
Division 407--Registrar's powers 306
407-1 Registrar may refuse to receive or register documents 306
407-5 Registrar may require additional information 306
407-10 Registrar may require information from persons on a register 307
407-15 Telephone or email notice of certain changes 307
407-20 Registrar may destroy or dispose of lodged documents 308
Division 410--Courts power if documents not lodged 309
410-1 Court may make certain orders 309
Part 9-3--Registers 311
Division 415--Introduction 311
415-1 What this Part is about 311
Division 418--Registers to be kept 312
418-1 Registers 312
418-5 Form of registers 312
418-10 Register of Aboriginal and Torres Strait Islander Corporations 312
418-15 Register of Disqualified Officers 312
Division 421--What information may a person obtain from the Registrar? 313
421-1 Inspection and production of records 313
421-5 Requests and certification of copy or extract etc. 314
Division 424--Validity and use of information etc. obtained from a register 316
424-1 Validity of copy or extract 316
424-5 Use in court proceedings etc. of documents issued by Registrar 316
424-10 Registrar's certificate that person was a director etc. 318
Chapter 10--Regulation and enforcement 319
Part 10-1--Introduction 319
Division 434--Introduction 319
434-1 What this Chapter is about 319
Part 10-2--Regulation of Aboriginal and Torres Strait Islander corporations 320
Division 439--Regulation of Aboriginal and Torres Strait Islander corporations 320
439-1 What this Part is about 320
439-5 Registrar may convene meetings of interested persons 320
439-10 Registrar may call a general meeting (other than an AGM) 321
439-15 Registrar may call an AGM 323
439-20 Registrar may require compliance with Act etc. 324
Part 10-3--Enforcement 326
Division 444--Introduction 326
444-1 What this Part is about 326
Division 447--Authorised officers 327
447-1 Appointment of authorised officers 327
447-5 Identity cards 327
Division 450--Purposes for which powers under this Part may be exercised 328
450-1 Purposes for which power under this Part may be exercised 328
Division 453--Examination of books and persons 329
453-1 Examination of books 329
453-5 Production of books or attendance to answer questions 330
Division 456--Warrants for books not produced 332
Subdivision 456-A--Warrants applied for in person 332
456-1 Application for warrant to seize books not produced 332
456-5 Grant of warrant 332
456-10 Powers where books produced or seized 333
Subdivision 456-B--Warrants by telephone or other electronic means 335
456-15 Applying for warrants by telephone or other electronic means 335
456-20 Issuing warrants by telephone etc. 336
456-25 Unsigned warrants by telephone etc. in court proceedings 337
Subdivision 456-C--Offences relating to warrants by telephone or other electronic means 337
456-30 Offence for stating incorrect names in warrants by telephone etc. 337
456-35 Offence for unauthorised form of warrant 338
456-40 Offence for execution etc. of unauthorised form of warrant 338
456-45 Offence for giving unexecuted form of warrant 338
Subdivision 456-D--Warrant details to be given to occupier 339
456-50 Details of warrant to be given to occupier etc. 339
Part 10-4--Offences relating to regulatory and enforcement powers of Registrar 340
Division 461--Offences relating to regulatory and enforcement powers of Registrar 340
461-1 Obstructing Registrar or interfering with meeting called by Registrar etc. 340
461-5 False information 341
461-10 Concealing books relevant to investigation 341
461-15 Self-incrimination 342
Part 10-5--Protection for whistleblowers 343
Division 466--Which disclosures qualify for protection under this Part? 343
466-1 Disclosures qualifying for protection 343
Division 469--Effects of disclosure 345
469-1 Disclosure that qualifies for protection not actionable etc. 345
469-5 Victimisation prohibited 346
469-10 Right to compensation 347
Division 472--Confidentiality requirement 348
472-1 Confidentiality requirements for corporations, corporation officers and employees and auditors 348
Chapter 11--External administration 350
Part 11-1--Introduction 350
Division 482--Introduction 350
482-1 What this Chapter is about 350
Part 11-2--Special administration 352
Division 487--Special administration of Aboriginal and Torres Strait Islander corporation 352
487-1 Registrar may put Aboriginal and Torres Strait Islander corporation under special administration 352
487-5 Grounds for special administration 352
487-10 Show cause notice procedure 355
487-15 Extension of period of special administration 356
487-20 Registrar may terminate special administration 356
487-25 References to corporation under special administration 356
Division 490--Appointment of special administrator 358
490-1 Registrar may appoint special administrator 358
490-5 Period of appointment 358
Division 493--Notice requirements 359
493-1 Notice of special administration determination or appointment of special administrator 359
Division 496--Effect of appointment of special administrator on officers of the corporation 361
496-1 General rule that offices of directors and secretary vacated when special administrator appointed 361
496-5 Registrar may determine that offices not vacated in certain circumstances 361
496-10 Powers of officers can only be exercised by, or with the consent of, special administrator 362
496-15 Only special administrator can deal with corporation's property 363
496-20 Order for compensation where officer involved in void transaction 364
Division 499--Function, duties and powers of special administrator 366
499-1 Function of special administrator 366
499-5 Powers of special administrator 366
499-10 Applying Corporations Act provisions to Aboriginal and Torres Strait Islander corporation that is under special administration 367
Division 502--Special administrator to report to Registrar 369
502-1 Report to Registrar 369
Division 505--Termination of special administrator's appointment 370
505-1 Termination of appointment of special administrator 370
505-5 Grounds for terminating appointment 371
505-10 Registrar to appoint new special administrator in certain circumstances 371
Division 508--Transition to normal control of the corporation's affairs at end of special administration 372
508-1 Special administrator to ensure that there will be directors when corporation ceases to be under special administration 372
508-5 Election of directors to take over affairs of corporation when corporation ceases to be under special administration 373
Division 511--Miscellaneous 374
511-1 Remuneration of special administrator 374
Part 11-3--Receivers, and other controllers, of property of corporations 375
Division 516--Receivers, and other controllers, of property of corporations 375
516-1 Applying Corporations Act receiver provisions to Aboriginal and Torres Strait Islander corporations 375
Part 11-4--Administration of an Aboriginal and Torres Strait Islander corporation's affairs with a view to executing a deed of corporation arrangement 377
Division 521--Administration of an Aboriginal and Torres Strait Islander corporation's affairs with a view to executing a deed of corporation arrangement 377
521-1 Applying Corporations Act administration provisions to Aboriginal and Torres Strait Islander corporations 377
521-5 Administrator's capacity to act as trustee 378
521-10 Corporations Act administrator cannot be appointed if special administrator appointed 378
521-15 Effect of appointment of special administrator on Corporations Act administrator 379
Part 11-5--Winding up 380
Division 526--Winding up 380
526-1 Court may order winding up 380
526-5 Grounds for Court ordered winding up 380
526-10 Acts etc. done to comply with Native Title legislation requirement 382
526-15 Who may apply to court for winding up order 382
526-20 Voluntary winding up 384
526-25 Distribution of surplus assets in winding up by Court 385
526-30 Distribution of surplus assets in voluntary winding up 386
526-35 Applying Corporations Act winding up provisions to Aboriginal and Torres Strait Islander corporations 387
526-40 Application of Corporations Act pre-winding up provisions 389
Part 11-6--Insolvent trading 391
Division 531--Insolvent trading 391
531-1 Applying Corporations Act insolvent trading provisions to Aboriginal and Torres Strait Islander corporations 391
531-5 Section 588G of Corporations Act prevails over conflicting Native Title legislation obligations 392
Part 11-7--Employees' entitlements 393
Division 536--Employees' entitlements 393
536-1 Applying Corporations Act employees' entitlements provisions to Aboriginal and Torres Strait Islander corporations 393
Chapter 12--Deregistration and unclaimed property 395
Part 12-1--Deregistration 395
Division 546--Deregistration 395
546-1 Deregistration--voluntary 395
546-5 Deregistration--Registrar initiated 396
546-10 Deregistration--following amalgamation or winding up 397
546-15 Registered native title body corporate 398
546-20 Effect of deregistration 398
546-25 What the Registrar does with the property 399
546-30 Registrar's power to fulfil outstanding obligations of deregistered corporation 400
546-35 Claims against insurers of deregistered corporation 401
546-40 Reinstatement 401
Part 12-2--Unclaimed property 403
Division 551--Unclaimed property 403
551-1 Unclaimed property 403
551-5 Registrar to deal with unclaimed property 403
551-10 Registrar and Commonwealth not liable to pay calls on shares etc. 403
551-15 Disposition of money that is unclaimed property etc. 404
551-20 Establishment of the Aboriginal and Torres Strait Islander Corporations Unclaimed Money Account 404
551-25 Credits of amounts to Account 404
551-30 Purposes of Account 404
551-35 Claims of disposition of money to incorrect payee 405
551-40 Commonwealth or Registrar not liable for loss or damage 406
Chapter 13--Offences 407
Part 13-1--Offences about false or misleading statements etc. 407
Division 561--Offences about false or misleading statements etc. 407
561-1 False or misleading statements 407
561-5 False information etc. 409
Part 13-2--General matters relating to offences 411
Division 566--General matters relating to offences 411
566-1 Penalties for bodies corporate 411
566-5 Penalty notices 411
566-10 Continuing offences 414
566-15 Time for instituting criminal proceedings 417
566-20 Privilege against self-incrimination not available to bodies corporate in certain proceedings 418
566-25 Certain persons to assist in prosecutions 418
Chapter 14--Courts and proceedings 420
Part 14-1--Powers of courts 420
Division 576--Powers of courts 420
576-1 Power to grant relief 420
576-5 Power of Court to give directions with respect to meetings ordered by the Court 421
576-10 Appeals from decisions of receivers, liquidators etc. 421
576-15 Irregularities 422
576-20 Power of Court to prohibit payment or transfer of money, financial products or other property 425
576-25 Injunctions 427
576-30 Effect of sections 576-20 and 576-25 429
576-35 Power of Court to punish for contempt of Court 429
Part 14-2--Proceedings 431
Division 581--Proceedings 431
581-1 The Registrar's power to intervene in proceedings 431
581-5 Civil proceedings not to be stayed 431
581-10 Standard of proof 431
581-15 Evidence of contravention 432
581-20 Costs 432
581-25 Vesting of property 433
Part 14-3--Jurisdiction and procedure of courts 435
Division 586--Civil jurisdiction 435
Subdivision 586-A--Introduction 435
586-1 Operation of Division 435
Subdivision 586-B--Conferral of jurisdiction 436
586-5 Jurisdiction of Federal Court and State and Territory Supreme Courts 436
586-10 Jurisdiction of Family Court and State Family Courts 437
586-15 Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers) 437
586-20 Jurisdiction of lower courts 439
586-25 Appeals 440
586-30 Courts to act in aid of each other 441
Subdivision 586-C--Transfer of proceedings 441
586-35 Transfer of proceedings by the Federal Court and State and Territory Supreme Courts 441
586-40 Transfer of proceedings by Family Court and State Family Courts 443
586-45 Transfer of proceedings in lower courts 445
586-50 Further matters for a court to consider when deciding whether to transfer a proceeding 446
586-55 Transfer may be made at any stage 446
586-60 Transfer of documents 446
586-65 Conduct of proceedings 447
586-70 Rights of appearance 448
586-75 Limitation on appeals 448
Subdivision 586-D--Rules of court 448
586-80 Rules of the Federal Court 448
586-85 Rules of the Supreme Court 449
586-90 Rules of the Family Court 449
Division 589--Criminal jurisdiction 451
589-1 Operation of Division 451
589-5 Jurisdiction of courts 451
589-10 Laws to be applied 454
Chapter 15--Administration 455
Part 15-1--Introduction 455
Division 599--Introduction 455
599-1 What this Chapter is about 455
Part 15-2--Protection of information 456
Division 604--Protection of information 456
604-1 What this Part is about 456
604-5 Protected information 456
604-10 Registrar's obligations in relation to protected information 457
604-15 Special administrator's obligations in relation to protected information 457
604-20 Consultant's obligations in relation to protected information 457
604-25 Authorised use or disclosure 458
Part 15-3--Protection from liability for Registrar, Minister etc. 462
Division 609--Protection from liability for Registrar, Minister etc. 462
609-1 Protection from liability for Minister, Registrar etc. 462
Part 15-4--Review of decisions 463
Division 614--Introduction 463
614-1 What this Part is about 463
Division 617--Reviewable decisions 464
617-1 Reviewable decisions 464
617-5 Deadlines for making reviewable decisions 468
617-10 Notice of reviewable decision and review rights 468
Division 620--Internal review of reviewable decisions 470
620-1 Registrar may reconsider reviewable decisions on own initiative 470
620-5 Reconsideration of reviewable decisions 470
Division 623--AAT review of reviewable decisions 472
623-1 AAT review of reviewable decisions 472
Part 15-5--Fees 473
Division 628--Fees 473
628-1 Fees 473
628-5 Lodgment of document without payment of fee 473
628-10 Doing act without payment of fee 473
628-15 Effect of sections 628-5 and 628-10 474
628-20 Debt due to the Commonwealth 474
628-25 Payment of fee does not give right to inspect or search 474
Part 15-6--Regulations 475
Division 633--Regulations 475
633-1 General regulation making power 475
633-5 Regulations concerning registered native title bodies corporate 475
Part 15-7--Approved forms 478
Division 638--Approved forms 478
638-1 Registrar may approve forms 478
Chapter 16--Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations 480
Part 16-1--Introduction 480
Division 648--Introduction 480
648-1 What this Chapter is about 480
Part 16-2--Appointment of the Registrar and Deputy Registrars 481
Division 653--Appointment of Registrar and Deputy Registrars 481
653-1 Registrar of Aboriginal and Torres Strait Islander Corporations 481
653-5 Deputy Registrars of Aboriginal and Torres Strait Islander Corporations 481
Part 16-3--Registrar's functions and powers 482
Division 658--Registrar's functions and powers 482
658-1 Functions of the Registrar 482
658-5 Aims of the Registrar 483
658-10 Powers of the Registrar 483
658-15 Registrar to have a seal 484
658-20 Judicial notice of certain matters 484
Part 16-4--Matters concerning the Registrar's and Deputy Registrars' appointments 485
Division 663--Matters concerning the Registrar's and Deputy Registrars' appointments 485
663-1 Registrar's remuneration 485
663-5 Resignation 485
663-10 Termination of Registrar's appointment 485
663-15 Termination of Deputy Registrar's appointment 486
663-20 Disclosure of interests 486
663-25 Acting appointments 486
663-30 Leave of absence 487
663-35 Outside employment 487
Part 16-5--Delegation 488
Division 668--Delegation 488
668-1 Delegation by Registrar 488
668-5 Sub-delegation by Deputy Registrar 488
Part 16-6--Staffing 490
Division 673--Staffing 490
673-1 Staff assisting the Registrar and Deputy Registrar 490
673-5 Engagement of consultants etc. by the Registrar 490
Chapter 17--Interpreting this Act 491
Part 17-1--Meaning of some important concepts 491
Division 683--Directors and officers of Aboriginal and Torres Strait Islander corporations 491
683-1 Meaning of director and officer 491
Division 686--Associates 494
686-1 Effect of Division 494
686-5 Associates of bodies corporate 494
686-10 General 494
686-15 Exclusions 495
Division 689--Subsidiaries and control 496
689-1 What is a subsidiary 496
689-5 Control of a body corporate's board 496
689-10 Matters to be disregarded 497
689-15 References in this Division to a subsidiary 498
689-20 Related bodies corporate 498
689-25 Control 498
Part 17-2--Interpretation of other expressions 500
Division 694--Interpretation of other expressions 500
694-1 Giving information 500
694-5 Doing acts 500
694-10 Signing 500
694-15 Business affairs of a body corporate 500
694-20 Business affairs of a natural person 500
694-25 Business affairs of a partnership 501
694-30 Business affairs of a trust 502
694-35 Meaning of court and Court 502
694-40 Entities 503
694-45 Entities connected with a corporation (including an Aboriginal and Torres Strait Islander corporation) 503
694-50 Extension of period for doing an act 505
694-55 Involvement in contraventions 505
694-60 Possession 505
694-65 Public document of a body corporate 506
694-70 Receivers and managers 507
694-75 Securities 507
694-80 Solvency and insolvency 507
694-85 Meaning of chief executive officer function 508
694-90 Applications to be in writing 509
694-95 Effect of certain contraventions of this Act 509
694-100 Effect of provisions empowering a person to require or prohibit conduct 509
694-105 Calculation of time 509
694-110 Performance of functions by Registrar or Deputy Registrar includes reference to delegate etc. 510
Part 17-3--Dictionary 511
Division 700--Dictionary 511
700-1 Dictionary 511
Chapter 17 Interpreting this Act
Part 17-3 Dictionary
Division 700 Dictionary
Section 700-1
Interpreting this Act Chapter 17
Dictionary Part 17-3
Dictionary Division 700
Section 700-1
Corporations (Aboriginal and Torres Strait Islander) Bill 2005 No. , 2005
Corporations (Aboriginal and Torres Strait Islander) Bill 2005 No. , 2005
Corporations (Aboriginal and Torres Strait Islander) Bill 2005 No. , 2005
A Bill for an Act to provide for Aboriginal and Torres Strait Islander corporations, and for related purposes
Preamble
The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.
The law is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders.
The Parliament of Australia enacts:
Chapter 1--Introduction
Part 1-1--Preliminary
Division 1--Preliminary
1-1 Short title
This Act may be cited as the Corporations (Aboriginal and Torres Strait Islander) Act 2005.
1-5 Commencement
This Act commences on 1 July 2006.
1-10 Act binds Crown
(1) This Act (except Part 5.8 of the Corporations Act as applied by subsections 516-1(3), 521-1(3), 526-35(3) and 526-40(3)) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
(2) To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.
(3) However, this Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
1-15 Geographical application of Act
(1) This Act extends to the external Territories.
(2) Each provision of this Act applies, according to its tenor, in relation to acts and omissions outside this jurisdiction.
1-20 Act applies regardless of residence, place of formation etc.
Each provision of this Act applies according to its tenor to:
(a) natural persons whether:
(i) resident in Australia or an external Territory or not; and
(ii) Australian citizens or not; and
(b) all bodies corporate and unincorporated bodies whether formed or carrying on business in Australia or an external Territory or not.
Note: Many of the provisions in this Act apply only in relation to Aboriginal and Torres Strait Islander corporations.
1-25 Objects of this Act
The objects of this Act are to:
(a) provide for the Registrar of Aboriginal and Torres Strait Islander Corporations; and
(b) provide for the Registrar's functions and powers; and
(c) provide for the incorporation, operation and regulation of those bodies that it is appropriate for this Act to cover; and
(d) without limiting paragraph (c)--provide for the incorporation, operation and regulation of bodies that are incorporated for the purpose of becoming a registered native title body corporate; and
(e) provide for the duties of officers of Aboriginal and Torres Strait Islander corporations and regulate those officers in the performance of those duties.
1-30 Office of the Registrar of Aboriginal and Torres Strait Islander Corporations
There is to be, within the Department, the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations.
1-35 Interpretative provisions
Chapter 17 contains the Dictionary, which sets out a list of all the terms that are defined in this Act. It also sets out the meanings of some important concepts and rules on how to interpret this Act.
Part 1-2--Overview of Act
Division 6--Overview of Act
6-1 Overview of Act
(1) This Act primarily provides for the incorporation and regulation of Aboriginal and Torres Strait Islander corporations.
(2) It also provides for the Registrar and the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations.
6-5 Aboriginal and Torres Strait Islander corporations
(1) Chapter 2 provides for an application to be made to the Registrar for registration of an Aboriginal and Torres Strait Islander corporation.
(2) There are a number of registration requirements that must be met before the Registrar may register an Aboriginal and Torres Strait Islander corporation.
(3) Chapter 2 also deals with the effects of registration of an Aboriginal and Torres Strait Islander corporation on the corporation's members, officers, contact persons and registered office.
6-10 Basic features of an Aboriginal and Torres Strait Islander corporation
(1) Chapter 3 deals with the basic features of an Aboriginal and Torres Strait Islander corporation. It covers matters such as the corporation's name, constitution and other rules applying to the corporation and the corporation's registered office or address for document access.
(2) Chapter 3 also provides for the assumptions that people who deal with an Aboriginal and Torres Strait Islander corporation can make in those dealings.
6-15 Members and observers
(1) Chapter 4 sets out some rules for membership of an Aboriginal and Torres Strait Islander corporation and some rules about cancelling the membership of members of the corporation. Aboriginal and Torres Strait Islander corporations have members (as opposed to shareholders) and they may also have persons who observe the operation of the corporation's meetings (observers).
(2) Chapter 4 also deals with the register of members that the corporation is required to keep, and with protection of the rights and interests of members of the corporation.
6-20 Meetings
(1) Chapter 5 sets out some rules for the calling and holding of general meetings and annual general meetings of an Aboriginal and Torres Strait Islander corporation.
(2) Chapter 5 also deals with rules concerning directors' meetings.
6-25 Officers
(1) Chapter 6 deals with officers and contact persons of an Aboriginal and Torres Strait Islander corporation.
(2) Importantly, Chapter 6 also deals with the duties of officers and their disqualification for breaches of those duties.
6-30 Record keeping, reporting requirements and books
(1) Chapter 7 deals with the reporting requirements that are imposed on an Aboriginal and Torres Strait Islander corporation. An Aboriginal and Torres Strait Islander corporation may have to lodge a general report and may also have to lodge financial reports (depending on the corporation's size etc.).
(2) Chapter 7 also deals with the books of an Aboriginal and Torres Strait Islander corporation.
6-35 Civil consequences of contravening civil penalty provisions
Chapter 8 deals with the civil consequences of an officer breaching a duty imposed by this Act.
Note: The criminal consequences are dealt with in Chapter 6.
6-40 Lodgments and registers
(1) Chapter 9 deals with the requirement to lodge certain documents with the Registrar.
(2) Chapter 9 also deals with the registers that the Registrar may, or is required to, keep. Information on these registers is available to the public.
6-45 Regulation and enforcement
(1) Chapter 10 deals with a number of regulatory powers that the Registrar may use in the regulation of Aboriginal and Torres Strait Islander corporations.
(2) Chapter 10 also deals with the Registrar's powers of enforcement and the protection of whistleblowers.
6-50 External administration
(1) Chapter 11 deals with the administration of an Aboriginal and Torres Strait Islander corporation by persons outside the corporation (for example, in a winding up).
(2) Importantly, the Registrar may appoint a special administrator for an Aboriginal and Torres Strait Islander corporation in circumstances that are vital to the continued viability of the corporation. The special administrator differs from an ordinary administrator.
6-55 Deregistration and unclaimed property
Chapter 12 deals with the deregistration of an Aboriginal and Torres Strait Islander corporation and with unclaimed property.
6-60 Offences
Chapter 13 deals with general offences against this Act.
6-65 Courts and proceedings
Chapter 14 deals with the jurisdiction of courts to hear matters under this Act, injunctions and court proceedings.
6-70 Administration
Chapter 15 deals with a number of matters concerning the general administration of this Act (for example, the protection of information and review of decisions).
6-75 Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations
(1) Chapter 16 deals with the appointment of the Registrar and Deputy Registrars. The Registrar is charged with the administration of this Act.
(2) Chapter 16 also deals with the powers and functions of the Registrar.
6-80 Interpreting this Act
Chapter 17 contains the interpretation provisions of this Act and the definitions.
Chapter 2--Aboriginal and Torres Strait Islander corporations
Part 2-1--Introduction
Division 16--Introduction
16-1 What this Chapter is about
This Chapter provides for Aboriginal and Torres Strait Islander corporations and their registration.
In particular, it deals with:
* what an Aboriginal and Torres Strait Islander corporation is (see section 16-5); and
* the application for registration (see Part 2-2); and
* decisions on applications (see Part 2-3); and
* registration of small, medium and large corporations (see Part 2-4); and
* the effects of registration (see Part 2-5).
16-5 Meaning of Aboriginal and Torres Strait Islander corporation
An Aboriginal and Torres Strait Islander corporation is a corporation registered under this Act.
Part 2-2--Applications for registration of an Aboriginal and Torres Strait Islander corporation
Division 21--Applications for registration of an Aboriginal and Torres Strait Islander corporation
21-1 Application for registration
(1) An application by a person (the applicant) for registration of an Aboriginal and Torres Strait Islander corporation must contain the following information:
(a) the applicant's name and address;
(b) the corporation's proposed name;
(c) if the applicant is requesting an exemption from having to have at least 5 members--a request for the exemption specifying the proposed minimum number of members;
(d) an indication of whether, for the corporation's first financial year, the corporation is expected to be a small, medium or large corporation;
(e) if the corporation is expected to be a large corporation for the corporation's first financial year--the address of the proposed registered office;
(f) if the corporation is expected to be a small or medium corporation for the corporation's first financial year--the address of the proposed document access address;
(g) the names and addresses of each person who consents in writing to become a member of the corporation;
(h) the director details of each person who consents in writing to become a director of the corporation;
(i) if the corporation is expected to be a small or medium corporation in respect of the corporation's first financial year--the name and address of the person who consents in writing to be the contact person;
(j) if the corporation is expected to be a large corporation in respect of the corporation's first financial year--the name and address of the person who consents in writing to be the corporation's secretary;
(k) whether the people who are, or have been, members of the corporation are to be liable to contribute towards the payment of the debts and liabilities of the corporation and if so, the extent of the persons' liabilities;
(l) such other information that the Registrar specifies in writing in respect of the registration of the corporation;
(m) such other information that is prescribed by the regulations as information that must be included in the application.
Note: The address of the director, secretary or contact person that must be stated is usually the residential address. However, an alternative address may be stated in certain circumstances (see section 304-15).
(2) The application must also:
(a) identify the directors who are to hold office for only one year; and
(b) if the application seeks registration of an Aboriginal and Torres Strait Islander corporation for the purpose of becoming a registered native title body corporate--indicate that purpose.
Director details
(3) The director details of a person who consents to become a director are the following:
(a) the person's given and family name;
(b) all former given and family names of the person;
(c) all other names by which the person is or was known;
(d) the person's address;
(e) the person's date and place of birth (if known);
(f) a declaration in writing from the person stating that the person is eligible to be a director of an Aboriginal and Torres Strait Islander corporation.
(4) A specification by the Registrar under paragraph (1)(l) is not a legislative instrument.
21-5 Matters to accompany application
The following must accompany an application under section 21-1:
(a) evidence of the decisions referred to in section 29-15 (if applicable);
(b) copies of the consents referred to in subsection 21-1(1).
Note: Under the internal governance rules requirement (see section 29-20), a copy of the proposed constitution of a proposed corporation must also be provided to the Registrar before the time the Registrar makes a decision under section 26-1 in respect of the application.
21-10 Registrar may seek further information
(1) For the purposes of determining an application, the Registrar may request an applicant to provide such further information as the Registrar requests within the period specified by the Registrar in the request.
(2) The Registrar may extend a period specified under subsection (1).
(3) If the applicant does not comply with the request, the Registrar may treat the application as being withdrawn and notify the applicant in writing accordingly. The notice must be given within 28 days after the Registrar makes the decision to treat the application as being withdrawn.
(4) A request under this section must state the effect of subsection (3).
Part 2-3--Decisions on applications
Division 26--Registrar to decide application
26-1 Registrar to decide application
Registrar to decide
(1) The Registrar must make a decision whether or not to grant an application for registration of an Aboriginal and Torres Strait Islander corporation.
When may Registrar grant application
(2) The Registrar may decide to grant the application if:
(a) an application under section 21-1 has been lodged for registration of the corporation (but see section 26-5); and
(b) the application is accompanied by the matters set out in section 21-5 (but see section 26-5); and
(c) the Registrar is satisfied that, on registration, the corporation will meet the following basic requirements set out in Division 29 (but see section 26-10):
(i) the minimum number of members requirement (see section 29-1);
(ii) the Indigeneity requirement (see section 29-5);
(iii) the age of members requirement (see section 29-10);
(iv) the pre-incorporation requirement (see section 29-15);
(v) the internal governance rules requirement (see section 29-20);
(vi) the name requirement (see section 29-25); and
(d) section 26-15 does not preclude the registration; and
(e) the Registrar is satisfied that it is more appropriate that the corporation be registered under this Act than under the Corporations Act or a law of a State or Territory dealing with incorporated bodies; and
(f) the Registrar is satisfied that registering the corporation would not be contrary to the public interest.
26-5 Registrar may grant application if application is incomplete etc.
Despite paragraphs 26-1(2)(a) and (b), the Registrar may grant the application even if the application for registration:
(a) is incomplete or contains errors (as long as the applicant has provided his or her name and address in the application); or
(b) some or all of the material required to accompany the application under section 21-5 is not provided, is incomplete or contains errors.
26-10 Registrar may grant application if some basic requirements are not met
Circumstances when Registrar may register corporation
(1) Despite paragraph 26-1(2)(c), the Registrar may grant the application even if the Registrar is not satisfied that the corporation, on registration, would meet:
(a) the minimum number of members requirement; or
(b) the age of members requirement; or
(c) the pre-incorporation requirement.
Registrar not to register body in certain circumstances
(2) However, the Registrar must not grant the application and register an Aboriginal and Torres Strait Islander corporation if, on registration, the corporation would not meet:
(a) the Indigeneity requirement; or
(b) the internal governance rules requirement; or
(c) the name requirement.
26-15 Registrar not to register trade unions etc.
The following cannot be registered under this Act:
(a) a trade union;
(b) a body that is providing financial services (within the meaning of Chapter 7 of the Corporations Act);
(c) a body of a kind prescribed in the regulations as a kind of body that must not be registered.
Division 29--What are the basic requirements for registration?
29-1 Minimum number of members requirement
An Aboriginal and Torres Strait Islander corporation meets the minimum number of members requirement if the corporation complies with the requirement in subsection 77-5(1).
29-5 Indigeneity requirement
An Aboriginal and Torres Strait Islander corporation meets the Indigeneity requirement if the corporation has the following required number or percentage of its members who are Aboriginal and Torres Strait Islander persons:
(a) if the corporation has 5 or more members--at least the percentage of members prescribed in the regulations for the purposes of this section;
(b) if the corporation has fewer than 5 members but more than one member--all of the members, or all but one of the members;
(c) if the corporation has only one member--that member.
Note: For the meaning of Aboriginal and Torres Strait Islander person, see section 700-1.
29-10 Age of members requirement
An Aboriginal and Torres Strait Islander corporation meets the age of members requirement if each member of the corporation is at least 15 years of age.
29-15 Pre-incorporation requirement
(1) An Aboriginal and Torres Strait Islander corporation meets the pre-incorporation requirement if 75% of the persons listed in the application for registration as persons who consent to become members of the corporation on registration have:
(a) authorised the applicant to apply for the incorporation of the Aboriginal and Torres Strait Islander corporation; and
(b) approved the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution of the corporation; and
(c) if the internal governance rules that would apply to the corporation will include one or more replaceable rules--agreed to those replaceable rules so applying; and
(d) nominated, as persons who will become directors of the corporation, the persons specified in the application as persons who will become directors on registration; and
(e) if the application indicates that the corporation is expected to be a small or medium corporation in respect of the corporation's first financial year--nominated, as a person who will become a contact person of the corporation, the person specified in the application as a person who will become contact person on registration; and
(f) if the application indicates that the corporation is expected to be a large corporation in respect of the corporation's first financial year--nominated, as a person who will become the corporation's secretary, the person specified in the application as a person who will become the corporation's secretary on registration.
(2) The document evidencing the agreement under paragraph (1)(c) must:
(a) refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the corporation; and
(b) set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.
29-20 Internal governance rules requirement
(1) An Aboriginal and Torres Strait Islander corporation meets the internal governance rules requirement if the corporation's constitution complies with the requirements set out in section 66-1.
(2) In addition, a copy of the corporation's proposed constitution must be lodged before the time the Registrar makes a decision under section 26-1 in respect of the application.
29-25 Name requirement
An Aboriginal and Torres Strait Islander corporation meets the name requirement if the corporation complies with the requirements set out in section 85-1.
Division 32--Decisions on applications
32-1 Successful applications
(1) If the Registrar grants an application for registration of an Aboriginal and Torres Strait Islander corporation, the Registrar must:
(a) register the Aboriginal and Torres Strait Islander corporation; and
(b) register the corporation's constitution; and
(c) issue a certificate to the applicant that states the following:
(i) the corporation's name and ICN;
(ii) that the corporation is registered under this Act;
(iii) the date of the registration.
Note: Section 37-1 requires the Registrar to register the corporation as a small, medium or large corporation.
(2) The Registrar must keep a record of the registration and the constitution.
(3) A certificate under subsection (1) is not a legislative instrument.
32-5 Unsuccessful applications
(1) If:
(a) the Registrar does not grant the application; and
(b) section 26-15 does not preclude the registration;
the Registrar must, in writing:
(c) notify the applicant of the decision within 28 days after the decision; and
(d) invite the applicant to:
(i) make such changes in the application or accompanying material that will remove the grounds for refusal; and
(ii) advise the Registrar, within the time specified in the invitation, of any changes made or, if the changes are not made, of the reasons for the changes not being made.
(2) If the Registrar is advised under subparagraph (1)(d)(ii), the Registrar must reconsider the application.
Part 2-4--Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation
Division 37--Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation
37-1 Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation
(1) On the registration of an Aboriginal and Torres Strait Islander corporation, the Registrar must register the corporation as a small, medium or large corporation.
Note: The classification determines the reports the corporation has to prepare (see Chapter 7) and whether or not the corporation must have a registered office and a corporation secretary.
(2) The Registrar may register the corporation as a small corporation only if:
(a) the application for registration indicates; or
(b) the Registrar is otherwise satisfied;
that the corporation is likely to be a small corporation in respect of its first financial year.
Note: Subsection 37-10(1) sets out the criteria for determining whether the corporation is a small corporation for a particular financial year.
(3) The Registrar may register the corporation as a medium corporation only if:
(a) the application for registration indicates; or
(b) the Registrar is otherwise satisfied;
that the corporation is likely to be a medium corporation in respect of its first financial year.
Note: Subsection 37-10(2) sets out the criteria for determining whether the corporation is a medium corporation for a particular financial year.
(4) The Registrar may register the corporation as a large corporation only if:
(a) the application for registration indicates; or
(b) the Registrar is otherwise satisfied;
that the corporation is likely to be a large corporation in respect of its first financial year.
Note: Subsection 37-10(3) sets out the criteria for determining whether the corporation is a large corporation for a particular financial year.
37-5 Registrar may alter registered size of corporation after registration
(1) If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a small corporation was in fact a medium or large corporation for the most recent financial year, the Registrar may alter the corporation's registration so that the corporation is registered as a medium or large corporation.
(2) If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a medium corporation was in fact a small or large corporation for the most recent financial year, the Registrar may alter the corporation's registration so that the corporation is registered as a small or large corporation.
(3) If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a large corporation was in fact a small or medium corporation for the most recent financial year, the Registrar may alter the corporation's registration so that the corporation is registered as a small or medium corporation.
(4) An alteration to an Aboriginal and Torres Strait Islander corporation's registration made under subsection (1), (2) or (3) is not a legislative instrument.
(5) The Registrar must notify an Aboriginal and Torres Strait Islander corporation in writing of an alteration made under this section.
37-10 Small, medium and large corporations
Small corporations
(1) An Aboriginal and Torres Strait Islander corporation is a small corporation for a financial year if it satisfies at least 2 of the following paragraphs:
(a) the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is less than the amount prescribed in the regulations for the purposes of this paragraph;
(b) the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is less than the amount prescribed in the regulations for the purposes of this paragraph;
(c) the corporation and the entities it controls (if any) have, at the end of the financial year, fewer employees than the number of employees prescribed for the purposes of this paragraph.
Note: A small corporation generally has reduced financial reporting requirements (see Chapter 7).
Medium corporations
(2) An Aboriginal and Torres Strait Islander corporation is a medium corporation for a financial year if it satisfies at least 2 of the following paragraphs:
(a) the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed under paragraph (1)(a) but less than the amount prescribed for the purposes of this paragraph;
(b) the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed under paragraph (1)(b) but less than the amount prescribed for the purposes of this paragraph;
(c) the corporation and the entities it controls (if any) have, at the end of the financial year, a number of employees that is equal to or more than the number prescribed under paragraph (1)(c) but fewer than the number of employees prescribed for the purposes of this paragraph.
Large corporations
(3) An Aboriginal and Torres Strait Islander corporation is a large corporation for a financial year if it satisfies at least 2 of the following paragraphs:
(a) the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed for the purposes of paragraph (2)(a);
(b) the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed for the purposes of paragraph (2)(b);
(c) the corporation and the entities it controls (if any) have, at the end of the financial year, a number of employees that is equal to or more than the number of employees prescribed for the purposes of paragraph (2)(c).
Native Title
(4) The native title rights and interests held by a registered native title body corporate are to be disregarded in determining the value of the assets of a registered native title body corporate.
37-15 When an Aboriginal and Torres Strait Islander corporation controls an entity
In deciding, for the purposes of section 37-10, whether an Aboriginal and Torres Strait Islander corporation controls an entity, apply the accounting standards made for the purposes of paragraph 295(2)(b) of the Corporations Act.
37-20 Counting employees
(1) The regulations may prescribe one or more methods for calculating the number of employees of Aboriginal and Torres Strait Islander corporations.
(2) Without limiting subsection (1), regulations made under that subsection may specify:
(a) that employees of a class are to be disregarded for the purposes of section 37-10; or
(b) that employees of a class are to be taken into account by treating each employee as representing a specified fraction of an employee.
37-25 Accounting standards
In consolidating under section 37-10:
(a) the consolidated gross operating income; and
(b) the value of consolidated gross assets;
apply the accounting standards in force at the relevant time (even if the standards do not otherwise apply to the financial year of some or all of the bodies concerned).
Part 2-5--Effects of registration
Division 42--Effects of registration
42-1 Corporation comes into existence on registration
An Aboriginal and Torres Strait Islander corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.
Note: The corporation remains in existence until it is deregistered (see Chapter 12).
42-5 Corporation's name
An Aboriginal and Torres Strait Islander corporation's name on registration is the name specified in the certificate of registration.
42-10 Members, directors, corporation secretary and contact person of corporation
Persons become members etc. on registration
(1) A person becomes a member, director, corporation secretary or contact person of an Aboriginal and Torres Strait Islander corporation on registration if the person is specified in the application with his or her consent as a proposed member, director, corporation secretary or contact person of the corporation.
Note: A member's name must be entered in the register of members (see section 180-5).
If no contact person nominated in the application for registration
(2) If:
(a) an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation; and
(b) the application for registration does not specify a person to be the contact person for the corporation;
the applicant becomes the contact person for the corporation on registration.
If person nominated in application for registration as contact person without the person's consent
(3) If:
(a) a person is specified in an application for registration of an Aboriginal and Torres Strait Islander corporation as the contact person for the corporation; and
(b) the person is specified without his or her consent; and
(c) before registration, the Registrar becomes aware of that fact;
the Registrar may determine, by notice in writing given to the applicant, that the applicant for registration is the contact person for the corporation on registration.
(4) A determination under subsection (3) is not a legislative instrument.
42-15 Registered office
If an Aboriginal and Torres Strait Islander corporation is registered as a large corporation, the address (if any) specified in the corporation's application for registration as the proposed registered office becomes the address of the corporation's registered office on registration.
42-20 Document access address
If an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation, the address (if any) specified in the corporation's application for registration as the proposed document access address becomes the corporation's document access address on registration.
42-25 Corporation may have common seal
(1) An Aboriginal and Torres Strait Islander corporation may have a common seal. If an Aboriginal and Torres Strait Islander corporation does have a common seal, the corporation must set out on it the corporation's name and ICN.
Note 1: An Aboriginal and Torres Strait Islander corporation may make contracts and execute documents without using a seal (see sections 99-1 and 99-5).
Note 2: For abbreviations that can be used on a seal, see section 85-10.
(2) An Aboriginal and Torres Strait Islander corporation may have a duplicate common seal. The duplicate must be a copy of the common seal with the words "duplicate seal" added.
(3) A person commits an offence if:
(a) the person uses, or authorises the use of, a seal; and
(b) the seal purports to be the common seal of an Aboriginal and Torres Strait Islander corporation or a duplicate; and
(c) the seal does not comply with the requirements set out in subsection (1) or (2).
Penalty: 10 penalty units.
(4) An offence against paragraph (3)(a) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
42-30 Vesting of property in corporation on registration
Application of section
(1) This section applies if an application is lodged to register an unincorporated body as an Aboriginal and Torres Strait Islander corporation.
Personal property other than land
(2) Upon registration, any personal property held by a person, in trust or otherwise, for or on behalf of the members of the body vests in the corporation. The property vests subject to any trust, covenant, contract or liability affecting the property (other than a trust for the members).
Estate or interest in land
(3) If:
(a) a person holds an estate or interest in land, in trust or otherwise, for or on behalf of the members of the body; and
(b) the body is registered;
that person must, upon the registration, take all action required to vest the estate or interest in the corporation. The vesting is subject to any trust (other than a trust for the members), or any covenant, contract or liability affecting the estate or interest.
(4) In subsection (2):
personal property does not include property consisting of an estate or interest in land.
Chapter 3--Basic features of an Aboriginal and Torres Strait Islander corporation
Part 3-1--Introduction
Division 52--Introduction
52-1 What this Chapter is about
This Chapter deals with the internal governance rules, the minimum number of members requirement, names and the powers of an Aboriginal and Torres Strait Islander corporation. It also deals with other basic matters affecting an Aboriginal and Torres Strait Islander corporation.
Part 3-2--Rules dealing with the internal governance of corporations
Division 57--Introduction
57-1 What this Part is about
The rules dealing with the internal governance of an Aboriginal and Torres Strait Islander corporation are of 4 kinds:
(a) common law rules; and
(b) rules in this Act that cannot be replaced by the corporation's constitution; and
(c) replaceable rules in this Act that may be modified or replaced by the corporation's constitution; and
(d) rules that are in the corporation's constitution.
Some of the rules in paragraph (d):
(a) may be required by this Act to be in the constitution; or
(b) may be there to modify or replace a replaceable rule; or
(c) may be there as a special rule applying to that particular corporation.
This Part deals with the rules in paragraphs (c) and (d) and refers to them as internal governance rules of the corporation (see section 63-1).
The corporation may choose to adopt all or some of the replaceable rules as rules of its internal governance.
The corporation's internal governance rules must comply with the internal governance rules requirements (see Division 66).
There are a number of ways the corporation's constitution may be changed. Any changes must comply with the internal governance rules requirements (see Division 69).
Division 72 deals with other matters concerning constitutions.
Division 60--What are the replaceable rules and when do they apply to a corporation?
60-1 Replaceable rules
Which are the replaceable rules?
(1) A section or subsection whose heading contains the words "replaceable rule--see section 60-1" is a replaceable rule.
To which corporations do the replaceable rules apply?
(2) The replaceable rules apply to:
(a) an Aboriginal and Torres Strait Islander corporation (not being a corporation to which paragraph (b) applies) that is registered on or after the day this section commences (the commencing day); and
(b) an Aboriginal and Torres Strait Islander corporation:
(i) that was registered under the Aboriginal Councils and Associations Act 1976 as an Aboriginal corporation immediately before the commencing day; and
(ii) that repeals its constitution after the commencing day;
except to the extent to which the rules are modified or replaced by the corporation's constitution as provided for in section 60-5.
60-5 Corporation's constitution can modify or replace replaceable rules
A provision of a section or subsection of a replaceable rule that applies to an Aboriginal and Torres Strait Islander corporation can be modified or replaced by the corporation's constitution.
Note: In modifying or replacing a replaceable rule, an Aboriginal and Torres Strait Islander corporation must ensure that the matter covered by the original replaceable rule is provided for in the corporation's constitution. If it is not, then the constitution may not be covering the matters provided for in the replaceable rules (see section 66-1).
60-10 Effect of constitution and replaceable rules
(1) An Aboriginal and Torres Strait Islander corporation's constitution, and any replaceable rules that apply to the corporation, have effect as a contract:
(a) between the corporation and each member; and
(b) between the corporation and each director and corporation secretary; and
(c) between a member and each other member.
(2) Under the contract, each person agrees to observe and perform the requirements of the constitution and rules so far as they apply to that person.
60-15 Failure to comply with replaceable rules
A failure to comply with the replaceable rules as they apply to an Aboriginal and Torres Strait Islander corporation is not of itself a contravention of this Act (so the provisions about criminal liability, civil liability and injunctions do not apply).
60-20 Modification by regulations
(1) The regulations may modify the replaceable rules in relation to:
(a) a specified Aboriginal and Torres Strait Islander corporation; or
(b) a specified class of Aboriginal and Torres Strait Islander corporation.
(2) Without limiting subsection (1), the regulations may:
(a) modify or repeal the replaceable rules; and
(b) set out new replaceable rules.
60-25 List of replaceable rules
The following table sets out the provisions of this Act that apply to Aboriginal and Torres Strait Islander corporations as replaceable rules.
Provisions that apply as replaceable rules
Item
Subject of provision
Provision
1
Chapter 4--Members and observers
Application for membership of corporation to be in writing
subsection 144-5(2)
2
Notice of rejection of membership application to be in writing
subsection 144-10(7)
3
Notice of resignation from membership of corporation to be in writing
subsection 150-10(2)
4
Member not eligible for membership etc.
section 150-20
5
Observer is entitled to attend a general meeting of the corporation
subsection 158-5(2)
6
Corporation or directors may allow member to inspect books
section 175-15
7
Chapter 5--Meetings
Director may call meetings
section 201-1
8
Notice to joint members
subsection 201-25(2)
9
When notice by post or fax is given
subsection 201-25(5)
10
When notice under paragraph (3)(e) is given
subsection 201-25(6)
11
Quorum for meeting of members of corporation
subsection 201-70(1)
12
Corporations with 10 members or less
subsection 201-70(2)
13
Adjourned meeting
subsection 201-70(5)
14
No quorum at resumed meeting
subsection 201-70(6)
15
Chairing general meeting
section 201-75
16
Business at adjourned meetings
subsection 201-85(2)
17
Who may appoint a proxy
section 201-90
18
How many votes a member has
section 201-115
19
Objections to right to vote
section 201-120
20
How voting is carried out
section 201-125
21
When and how polls must be taken
section 201-140
22
Calling directors' meetings
section 212-5
23
Chairing directors' meetings
section 212-15
24
Passing of directors' resolutions
section 212-25
25
Circulating resolutions of corporation with more than 1 director
section 215-1
26
Chapter 6--Officers
Corporation may appoint a director
section 246-15
27
Directors may appoint other directors to make up a quorum
section 246-20
28
Directors appointed on registration
subsection 246-25(1)
29
Director may be reappointed
subsection 246-25(3)
30
Alternate directors
section 246-30
31
Written notice to be given of resignation as director of corporation
subsection 249-5(2)
32
Terms and conditions of office for secretaries
section 257-45
33
Terms and conditions of contact person's appointment
section 257-50
34
Powers of directors
section 274-1
35
Negotiable instruments
section 274-5
Division 63--What are the internal governance rules of a corporation?
63-1 Meaning of internal governance rules
The following constitute the internal governance rules of an Aboriginal and Torres Strait Islander corporation:
(a) the replaceable rules (if any) applying to the corporation;
(b) the rules (if any) in the corporation's constitution that modify or replace some or all of the replaceable rules;
(c) the other rules dealing with the internal governance of the corporation that are in the corporation's constitution.
Division 66--What are the internal governance rules requirements?
66-1 Requirements
(1) The following are the internal governance rules requirements for an Aboriginal and Torres Strait Islander corporation.
(2) The corporation must have a constitution written in English that sets out the corporation's objects.
(3) The corporation's constitution must cover the matters that this Act specifies must be covered in the corporation's constitution.
(4) The internal governance rules must cover the matters that are provided for in the replaceable rules (see section 66-5).
(5) The internal governance rules must also be:
(a) internally consistent; and
(b) adequate and workable, given the context in which the corporation operates; and
(c) consistent with this Act; and
(d) consistent with the Native Title legislation if:
(i) an application for registration of an Aboriginal and Torres Strait Islander corporation seeks registration of the corporation for the purpose of becoming a registered native title body corporate; or
(ii) the corporation is a registered native title body corporate.
(6) The corporation must meet the requirements at all times after registration.
Note 1: An application for registration of an Aboriginal and Torres Strait Islander corporation may not be successful unless the corporation, on registration, is complying with the requirements (see section 29-20).
Note 2: If an Aboriginal and Torres Strait Islander corporation is making a change to its constitution and the Registrar is of the opinion that the corporation's internal governance rules, after the change, would not comply with the internal governance rules requirements, the Registrar may refuse to register the change (see section 69-30).
66-5 Meaning of cover the matters provided for in the replaceable rules
If all replaceable rules apply or all are replaced
(1) The internal governance rules of an Aboriginal and Torres Strait Islander corporation cover the matters provided for in the replaceable rules if:
(a) all of the replaceable rules apply to the corporation; or
(b) none of the replaceable rules apply to the corporation and the corporation's constitution covers all of the matters provided for in the replaceable rules.
If some replaceable rules apply and some are modified or replaced
(2) The internal governance rules of an Aboriginal and Torres Strait Islander corporation also cover the matters provided for in the replaceable rules if:
(a) some of the replaceable rules apply to the corporation; and
(b) the corporation's constitution provides for the matters covered by the replaceable rules that the corporation has modified or replaced.
Corporation may also have other rules unrelated to the replaceable rules in its constitution
(3) To avoid doubt, and subject to the internal governance rules requirements, nothing in this Part precludes the constitution of an Aboriginal and Torres Strait Islander corporation providing for a matter that is in addition to those matters provided for in the replaceable rules.
Regulations may modify section
(4) The regulations may modify this section.
(5) Without limiting subsection (4), the regulations may provide for further situations in which the internal governance rules of an Aboriginal and Torres Strait Islander corporation cover the matters provided for in the replaceable rules.
Division 69--Constitutions and amendment and replacement of constitutions
Subdivision 69-A--Constitution on registration
69-1 Constitution of an Aboriginal and Torres Strait Islander corporation
(1) The constitution of an Aboriginal and Torres Strait Islander corporation is the constitution that is registered in respect of the corporation.
Note: 75% of the persons specified in the application for registration as persons who consent to become members must approve the constitution before the application for registration is lodged (see section 29-15).
(2) A constitution is an instrument (other than this Act):
(a) constituting, or defining the constitution of, an Aboriginal and Torres Strait Islander corporation; or
(b) governing the activities of such a corporation or its members.
Subdivision 69-B--Constitutional changes after registration
69-5 Overview--ways a constitution may be changed
Corporation wants to change its constitution
(1) For an Aboriginal and Torres Strait Islander corporation to change its constitution, the following steps must be complied with:
(a) the corporation must pass a special resolution effecting the change;
(b) if, under the corporation's constitution, there are further steps that must also be complied with to make a constitutional change--those steps must be complied with (see section 69-15);
(c) the corporation must lodge certain documents (see section 69-20);
(d) the Registrar must make certain decisions in respect of the constitutional change and, if appropriate, must register the change (see section 69-30).
Note: The constitutional change takes effect when it is registered (see section 69-40).
Court may change a constitution
(2) The court may also change an Aboriginal and Torres Strait Islander corporation's constitution (see section 166-5).
Note: The constitutional change takes effect as provided for in paragraph 69-40(b).
Registrar may change a constitution
(3) The Registrar may also change an Aboriginal and Torres Strait Islander corporation's constitution (see section 69-35).
Note 1: If the Registrar changes a constitution under section 69-35, the steps in subsection (1) of this section do not apply.
Note 2: The constitutional change takes effect when it is registered (see section 69-40).
Special administrator may change a constitution
(4) A special administrator for an Aboriginal and Torres Strait Islander corporation may also change the corporation's constitution (see section 499-5).
Note 1: If the special administrator changes a constitution under section 499-5, the steps in paragraphs (1)(a), (b) and (c) of this section do not apply (but the administrator must lodge the change with the Registrar under section 69-25 and the Registrar must take the steps in section 69-30).
Note 2: The constitutional change takes effect when it is registered (see section 69-40).
69-10 Meaning of constitutional change etc.
(1) For the purposes of this Act, an Aboriginal and Torres Strait Islander corporation's constitution is changed if:
(a) the constitution is repealed and a new constitution is substituted; or
(b) a provision of the constitution is repealed and a new provision is substituted; or
(c) a provision of the constitution is repealed; or
(d) a new provision is added to the constitution; or
(e) a provision of the constitution is modified.
(2) The particular constitutional change is:
(a) in the case of paragraph (1)(a)--the new constitution; and
(b) in the case of paragraphs (1)(b) and (d)--the repeal (if any) and the new provision; and
(c) in the case of paragraph (1)(c)--the repeal; and
(d) in the case of paragraph (1)(e)--the modification.
69-15 Extra requirements for constitutional change in constitution
(1) An Aboriginal and Torres Strait Islander corporation's constitution may provide that a change to its constitution does not have any effect unless a requirement specified in the constitution relating to that constitutional change has been complied with.
(2) Unless the constitution provides otherwise, the corporation may modify or repeal a requirement described in subsection (1) only if the requirement is itself complied with.
Note: Section 69-40 deals with when the constitutional change takes effect.
69-20 Corporation to lodge copy of constitutional changes
(1) If no requirement of a kind mentioned in section 69-15 is specified in the corporation's constitution, within 28 days after the special resolution is passed, the corporation must lodge with the Registrar:
(a) a copy of the special resolution; and
(b) a copy of those parts of the minutes of the meeting at which the special resolution was passed that relate to the passing of the special resolution; and
(c) a directors' statement (see subsection (4)); and
(d) a copy of the constitutional change.
Penalty: 5 penalty units.
(2) If a constitutional change is not to have effect until a requirement specified in the corporation's constitution has been complied with, the corporation must lodge the documents referred to in subsection (1) in addition to proof that the requirement has been met within 28 days after the requirement has been met.
Penalty: 5 penalty units.
(3) An offence against subsection (1) or (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) The Registrar may direct the corporation to lodge a consolidated copy of the corporation's constitution. The consolidation must set out the constitution as it will be if the Registrar registers the constitutional change.
(5) A directors' statement is a statement signed by:
(a) 2 directors of the corporation; or
(b) if there is only 1 director--that director;
to the effect that the special resolution was passed in accordance with the internal governance rules.
Note: See also section 265-40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.
69-25 Special administrator to lodge copy of constitutional changes
If the special administrator of an Aboriginal and Torres Strait Islander corporation changes the corporation's constitution under section 499-5, the special administrator must lodge a copy of the change with the Registrar.
69-30 Registrar to determine if constitutional change should be registered
Registrar to decide
(1) The Registrar must decide whether to register a constitutional change lodged under section 69-20 or 69-25.
Changed internal governance rules must comply with the internal governance rules requirement
(2) The Registrar must not register the change unless the Registrar is satisfied that, with the constitutional change, the internal governance rules of the corporation would comply with the internal governance rule requirements.
Proposed change after Registrar's change
(3) In addition to being satisfied as required by subsection (2), the Registrar must not register a constitutional change lodged after the Registrar has changed the constitution under section 69-35 unless the Registrar is satisfied that:
(a) the lodged change is consistent with the change made by the Registrar, taking into account the Registrar's reasons for making that change; and
(b) the reasons for the Registrar making that change are no longer applicable.
If Registrar is not satisfied
(4) If the Registrar is not satisfied as required by this section, the Registrar must:
(a) refuse to register the change; and
(b) notify the corporation or special administrator concerned in writing of the decision within 28 days after that decision.
If Registrar is satisfied
(5) If the Registrar is satisfied as required by this section, the Registrar must register the change within 28 days after making the decision.
69-35 Registrar may change an Aboriginal and Torres Strait Islander corporation's constitution on own initiative
(1) The Registrar may, on his or her own initiative, change an Aboriginal and Torres Strait Islander corporation's constitution in the circumstances set out in subsection (2) or (3).
(2) The Registrar may change the constitution if the Registrar is satisfied that the corporation is not meeting the internal governance rules requirements.
Note: Section 66-1 sets out the requirements.
(3) The Registrar may change the constitution if the Registrar is satisfied that:
(a) the conduct of the corporation's affairs; or
(b) an actual or proposed act or omission by or on behalf of the corporation; or
(c) a resolution, or a proposed resolution, of members or a class of members of the corporation;
is either:
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
(4) The changes that the Registrar may make are the changes that the Registrar considers appropriate having regard to the internal governance rules requirements and the circumstances of the particular corporation.
(5) If the corporation is a registered native title body corporate, the Registrar must not change the constitution on the basis of:
(a) an act (or omission from doing an act); or
(b) a proposed act (or omission from doing an act);
if an officer or employee of the corporation does (or refrains from doing), or proposes to do (or refrain from doing), the act:
(c) in good faith; and
(d) with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.
(6) The Registrar makes the change by registering it.
(7) If the Registrar changes the constitution, the Registrar must give the corporation written notice within 28 days after registration of the changes:
(a) stating that the Registrar has changed the constitution; and
(b) setting out the terms of the change.
(8) In making a change under this section, the Registrar does not have to comply with paragraph 69-5(1)(a) (special resolution), section 69-15 (satisfying extra requirements in constitution), section 69-20 (corporation to lodge copy of changes) or section 69-30 (Registrar to determine if constitutional change should be registered).
69-40 Date of effect of constitutional change
A constitutional change takes effect:
(a) if it is the result of a special resolution--on the day the change is registered; or
(b) if it is the result of a Court order made under section 166-5:
(i) on the date on which the order is made if it specifies no later date; or
(ii) on a date specified by the order; or
(c) if the Registrar has made the change--on the day the change is registered; or
(d) if a special administrator has made the change--on the day the change is registered.
Division 72--Other matters concerning constitutions etc.
72-1 Registrar may direct corporation to lodge constitution
(1) The Registrar may direct an Aboriginal and Torres Strait Islander corporation to lodge a copy of its constitution.
Note: Under section 322-5, an Aboriginal and Torres Strait Islander corporation must keep an up-to-date copy of its constitution.
(2) A direction made under subsection (1) is not a legislative instrument.
72-5 Corporation must provide governance material to members
Corporation must provide member with constitution etc.
(1) If a member of an Aboriginal and Torres Strait Islander corporation asks for a copy of the corporation's constitution or internal governance framework rules, the corporation must provide to the member a copy of the corporation's internal governance framework rules:
(a) free of charge; and
(b) within 7 days.
Penalty: 5 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Registered office
(3) An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must make available for inspection by members and officers at its registered office, its internal governance framework rules. The rules must be available for inspection each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm.
Note: Failure to comply with this subsection is an offence under section 376-1.
Document access address
(4) An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must make available for inspection by members and officers at its document access address, its internal governance framework rules. The rules must be made available for inspection within 7 days of a member's or officer's written request for inspection.
Note: Failure to comply with this subsection is an offence under section 376-1.
(5) A corporation must make rules available under subsections (3) and (4) free of charge.
Penalty: 5 penalty units.
(6) An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) The internal governance framework rules of an Aboriginal and Torres Strait Islander corporation are:
(a) the corporation's constitution; and
(b) any replaceable rules that apply to the corporation; and
(c) any other material concerning the internal governance of the corporation that is prescribed.
72-10 Constitution may limit powers
(1) An Aboriginal and Torres Strait Islander corporation's constitution may contain an express restriction on, or a prohibition of, the corporation's exercise of any of its powers. The exercise of a power by the corporation is not invalid merely because it is contrary to an express restriction or prohibition in the corporation's constitution.
(2) An act of the corporation is not invalid merely because it is contrary to or beyond the objects set out in the corporation's constitution.
Part 3-3--Minimum number of members of Aboriginal and Torres Strait Islander corporations
Division 77--Minimum number of members of Aboriginal and Torres Strait Islander corporations
77-1 What this Part is about
This Part deals with the minimum number of members that an Aboriginal and Torres Strait Islander corporation must have.
77-5 Minimum number of members requirement
Minimum number of members
(1) An Aboriginal and Torres Strait Islander corporation must have the following minimum number of members:
(a) at least 5 members; or
(b) the lesser number of members determined under subsection (2), (3) or (4).
Request in application for registration for exemption from at least 5 members
(2) If:
(a) an application for registration of an Aboriginal and Torres Strait Islander corporation is to be made; and
(b) the corporation is to have fewer than 5 members;
the applicant for registration must, in the application under section 21-1, request that the Registrar:
(c) exempt the corporation from having at least 5 members; and
(d) determine the corporation to have the lesser minimum number of members specified in the application.
Request after registration if determination under subsection (2) is in force
(3) If:
(a) the Registrar has determined a lesser number of members under subsection (2) in respect of an Aboriginal and Torres Strait Islander corporation and the determination is in force; and
(b) after registration of the corporation, the corporation wants to have fewer members than the numb