Mantziaris, Christos --- "Beyond the Aboriginal Councils and Associations Act? Part 2" [1997] IndigLawB 87; (1997) 4(6) Indigenous Law Bulletin 7
[1] (1997) (4) 5 Indigenous Law Bulletin, pp 10–14.
[2] The Final Report–Review of the Aboriginal Councils and Associations Act 1976 (Cth), Volume 1 (Main Report and Recommendations) and Volume 2 (Supporting Material), Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1996.
[3] As indicated in Part 1, I distinguish between ‘the Report’ (Vol. 1) and ‘Review’ which refers to the entire published work, due to divergences between the views in the Report and those expressed by some of the case study rapporteurs (in Vol. 2).
[4] For example, P Sullivan, ‘The Needs of Prescribed Bodies Corporate under the Native Title Act 1993 and Regulations’ (21 pp) and John Ley, ‘Administrative Decision–Making and Review under the Aboriginal Councils and Associations Act 1976’ (19 pp) in Review, Vol. 2. Cf. Review Vol. 1, pp 140–1, 147 and pp 132–4 which recommends the harmonisation of the ACA Act, the Native Title Act 1993 (Cth) and federal administrative law statutes.
[5] Cf. Review, Vol. 1, pp 22–23.
[6] Only one such review, G Neate, Report to the Registrar of Aboriginal Corporations on Review of the Aboriginal Councils and Associations Act 1976, 1989 is discussed: Vol. 1, p 66, Vol. 2 within J Fingleton, ‘A Chronology of the Aboriginal Councils and Associations Act 1976’, pp 8–11. The reader is alerted to the existence of other reviews—the Australian National Audit Office (1990), Freehill, Hollingdale and Page (1989), Price Waterhouse (February 1991) and Walter and Turnbull (March 1993)—by P Daffen, ‘ATSIC and the Office of the Registrar of Aboriginal Corporations’ (5 pp), p 3 in Review, Vol. 2.
[7] Issues addressed in the case studies, but not in the Report: Sullivan, ‘CS WA’, p 17 (the Garnduwa Gooniyandi Corporation) and Crough and Cronin, ‘CS, Kimb’, pp 41–2, 46 in Review,Vol. 2.
[8] Issues addressed in the case studies, but not in the Report: Sullivan, ‘CS WA’, p 17 (the Garnduwa Gooniyandi Corporation) and Crough and Cronin, ‘CS, Kimb’, pp 41–2, 46 in Review,Vol. 2.
[9] See generally HAJ Ford et al, Ford’s Principles of Corporations Law, 8th ed, Sydney, Butterworths, pars [15.010]–[15.190].
[10] See eg Crough and Cronin ‘CS, Kimb’, Review Vol. 2, pp 49–50 (guarantee for the Mayaroong Construction enforced against the Warringarri corporation). Cf. ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (1990) 2 ACSR 676; R Grantham, ‘Ultra vires: Gone but not forgotten’ (1993) 10 Aust Bar Rev 233; and R Baxt, ‘Ultra Vires—Has it been revived?’ (1991) 9 CSLJ 101.
[11] During 1995–96, the Registrar received 54 complaints relating to allegations of fraud and misappropriation and referred 10 matters to law enforcement agencies: Registrar of Aboriginal Corporations, Annual Report 1995–96, p 53. See also Annual Report 1991–92, p 7; Annual Report 1993–94, p 30; Annual Report 1994–95, p 27.
[12] Independent Commission Against Corruption (NSW), Preventing Corruption in Aboriginal Land Councils: Discussion Paper Summary, ICAC, Sydney, February 1997.
[13] For an introduction to various liability models for corporate crime, see J Braithwaite and B Fisse, Corporations, Crime and Accountability, CUP, 1993.
[14] Administration involves the appointment of a manager, nominated by the Registrar, in circumstances of maladministration. Its automatic consequence is the dissolution of the Governing Committee of the corporation. The Woodward Report recommended that such a mechanism be available under the ACA Act, and functionally equivalent provisions exist under most incorporation statutes.
[15] Registrar of Aboriginal Corporations, Annual Report 1995–96, pp 32 and 32–51, 83–4 passim; Annual Report 1994–95, pp 31–2.
[16] See eg the discussion of these issues In the Matter of Deeral Aboriginal and Torres Strait Islander Corporation (unrep, Federal Court, Kiefel J, Brisbane, 3 September 1996). The Report’s failure to deal with these issues is glaring in the light of the statistical evidence (supra note 14), publicly available information on administration regimes and the case study of Tharpuntoo Legal Service Corporation: Martin, ‘CS, Qld’, Review, Vol. 2, pp 8–14.
[17] Registrar of Aboriginal Corporations, Annual Report 1995–96, pp 30 and 91; Annual Report 1994–95, p 26.
[18] . Associations Incorporation Act 1991 (ACT), s88; Associations Incorporation Act 1984 (NSW), s50; Associations Incorporation Act 1991 (Qld), s44; Associations Incorporation Act1985 (SA), s41; Associations Incorporation Act 1981 (Vic), s32; Associations Incorporation Act 1987 (WA), s30; cf. Tasmania and the Northern Territory where there is no statutory procedure for winding up. Cf. also Corporations Law, Pts 5.4—5.6.
[19] See eg allegations in The Registrar of Aboriginal Corporations v Murnkuni Women’s Aboriginal Corporation (unrep, Federal Court, Nicholson J, Perth, 23 June 1995).
[20] Eg Aboriginal Hostels v Darwin City Council (1995) 75 FLR 197; Tangentyere Council Inc v The Commissioner of Taxes [1990] NTSC 14; (1990) 99 FLR 363; Corporation of the Director of Aboriginal Islanders Advancement v Peinkinna (1978) 52 ALJR 286; Dareton Local Aboriginal Land Council v Wentworth Shire Council (1995) 89 LGRA 120; Nungera Co–operative Society Ltd v Maclean Shire Council (1991) 73 LGRA 178; Toomelah Co–operative Limited v Moree Plains Shire Council (1996) 1 AILR 407; Flynn & Others v Mamarika & Others 1 AILR 611; Gambangerrii Aboriginal Corporation v Nambucca Council (NSW Land & Env Court, Stein J, 29 March 1996). And within the Review Vol. 2 Crough and Cronin, ‘CS, Kimb’, pp 8, 43, 46. Cf. Vol. 1 at p 145.
[21] Corporate Law Simplification Act 1995 (Cth); Second Corporate Law Simplification Bill 1996 (Cth). See generally, I Govey, ‘The Simplification Process: Aims and Prospects’ (1995) 5 Aust Jnl of Corp Law 125.
[22] The issue is discussed by a case study rapporteur (Martin, ‘CS Qld’, Review Vol. 2, p 31), but is overlooked in the Report: cf. Vol. 1, p 145.
[23] See eg Ford et al, Ford’s Principles of Corporations Law, 8th ed, Butterworths, Sydney, 1997, Ch 7.
[24] See T Rowse, Remote Possibilities: The Aboriginal Domain and the Administrative Imagination, North Australia Research Unit, Australian National University, Darwin, 1992, Ch. 3.
[25] Review Vol. 1, pp 51–56. See also D Martin and J Finlayson in Martin, ‘CS, Qld’, Review Vol. 2 (32 pp) at pp 23–30.
[26] P Finn, Fiduciary Obligations, Sydney, LBC, 1977; L Sealy, ‘Fiduciary Relationships’ [1962] Camb LJ 69, [1963] Camb LJ 119; A Scott, ‘The Fiduciary Principle’ (1949) California Law Journal 539; P Parkinson, ‘The Fiduciary Obligation’ in The Principles of Equity by P Parkinson (ed), Sydney, LBC, 1996, at pp 325–78.
[27] Eg Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 68–9 cf. 96–7 and 142; Reading v The King [1949] 2 KB 232 at 236; Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 at 200–201 per Toohey J; Frame v Smith (1987) 42 DLR (4th) 81 at 99 per Wilson J.
[28] P Finn, ‘Fiduciary Law and the Modern Commercial World’, in Commercial Aspects of Trusts and Fiduciary Obligations, E McKendrick (ed), Clarendon, Oxford, 1992, Ch 1 at 9; P Finn., ‘The Fiduciary Principle’, in Equity, Fiduciaries and Trusts, Youdan (ed), Carswell, Toronto, 1989, Ch 1 at 27; Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 at 198.
[29] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 99–100; Canadian Aero Services Ltd v O’Malley (1973) 40 DLR (3d) 371 at 382; J Glover, Commercial Equity–Fiduciary Relationships, Butterworths, Sydney, 1995, Ch 4.
[30] A director’s duty to act with care has both equitable and common law origins: Permanent Building Society v Wheeler (1994) 14 ACSR 109. The rediscovery of a separate common law director’s duty of care is very recent: Daniels v Anderson (1995) 16 ACSR 607. On the late reception of the tort of negligence: R Balkin and J Davis, The Law of Torts, 2nd ed, Butterworths, 1997, pp 197–208 and Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 LQR 184.
[31] Review, Vol. 1, pp 16–18 and Ch 6 passim.
[32] Review, Vol. 1, p 26.
[33] See below under ‘The Registrar’s Office’.
[34] Crough and Cronin, ‘CS, Kimb’, Review, Vol. 2, p 59.
[35] Martin, ‘CS, Qld’, Review Vol. 2, p 16. ‘Other revenues’ amount to 29%.
[36] There is a formidable anthropological literature on this issue. On the interface between legal and anthropological perspectives on ‘law’ and ‘tradition’, see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, 2 vols, AGPS, Canberra, 1986; and for critical perspectives: J Clarke, ‘Law and Race: The Position of Indigenous People’ in S Bottomley and S Parker, Law in Context, 2nd ed, Federation, Sydney, 1997, pp 231–75, esp pp 265ff and Greta Bird, The Process of Law in Australia: Intercultural Perspectives, Butterworths, Sydney, 1993, Chs 1, 2 and 5.
[37] DF Martin and JD Finalyson, Linking accountability and self–determination in Aboriginal organisations, Centre for Aboriginal Economic Policy Research, Australian National University, Canberra, DP 116/1996, p 7.
[38] Ibid, p 5; Sullivan ‘CS, WA’, Review Vol. 2, p 32 and pp 30–4 passim.
[39] On this phenomenon within the European legal tradition: Juridification of social spheres, G Teubner (ed), De Gruyter, Berlin, 1987; J Habermas, The Theory of Communicative Action Vol. 2: Lifeworld and System: A Critique of Functionalist Reason, Polity, 1987, pp 356–373 and Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Polity, 1996, pp 410–411.
[40] See eg the facts of Judith Klimm & Nanette Ahmat v Warringu Aboriginal and Torres Strait Islander Corporation (unrep, HREOC, WJ Carter [Inquiry Commissioner], Cairns, 11 August 1992).
[41] See eg the facts of Whitehouse v Carlton Hotel [1987] HCA 11; (1987) 162 CLR 285, Story v Advance Bank Ltd (1993) 10 ACSR 699, Coleman v Myers [1976] NZHC 5; [1977] 2 NZLR 225 and P Spender, ‘Family Companies and Women’s Proprietary Entitlements’, (1997) 11 Aust Jnl Fam Law 196.
[42] Review, Vol. 1, p 52.
[43] The model is also at odds with the Report’s suggestion that Pt III of the ACA Act be explored as an avenue for self–government: Review, Vol. 1, pp 118, 126, 145.
[44] Review Vol. 1, pp 45–50 and 144.
[45] ACA Act, s58(1).
[46] See generally HAJ Ford and WA Lee, Principles of the Law of Trusts, LBC, looseleaf, paras [5230]ff and G Dal Pont and D Chalmers, Equity and Trusts in Australia and New Zealand, LBC, Sydney, 1996, pp 369–73.
[47] ACA Act, s45A. See also Part 1 of this article.
[48] Corporations Law s114(1). This provision might be extended to all Corporations Law companies by the Second Corporate Law Simplification Bill (amending Corporations Law s114 and inserting s462(2A)).
[49] See eg Corporations Law, Pt 3.6 Div 4A and Pt 3.2A respectively.
[50] Consider the following hypothetical: A series of small family or traditional land–holding corporations such as Gammon Corp become members of a regional ‘umbrella organisation’, Wannem Regional Corp. Membership of Wannem allows Gammon to make an appointment to Wannem’s board. Gammon appoints John, an influential person in the community which underpins Gammon. John is a member, and possibly even a director of Gammon. Gammon’s members will expect John to look after their interests when he sits on the board of Wannem. But John will find himself in potential conflicts of interest and duty or conflicts of duty and duty each time the Wannem board makes decisions concerning service provision to Gammon or to any of its (traditional) rivals. The fiduciary principle requires John to place his loyalty to Wannem before his loyalty to Gammon.
[51] For an introduction, see The Law Relating to Corporate Groups, M Gilooly (ed), Federation, Sydney, 1993.
[52] Review, Vol. 1, pp 56–61 and 147–8.
[53] ACA Act, s45(3).
[54] Review, Vol. 1, p 58.
[55] Since 1865, predecessor statutes to the Corporations Law have provided incorporators with a model set of Articles: P Redmond, Companies and Securities Law: Commentary and Materials, 2nd ed, LBC, Sydney, 1992, p 137 and Corporations Law, Sch 1, Table A and s175.
[56] Review, Vol. 1, p 143.
[57] See generally, KL Fletcher, The Law Relating to Non–Profit Associations in Australia and New Zealand, LBC, Sydney, 1986 and S Sievers, Associations and Clubs Law in Australia and New Zealand, 2nd ed, Federation, Sydney, 1996.
[58] See, for example, Associations Incorporation Act 1984 (NSW) s14; Ex parte Western Australian National Football League Inc [1979] HCA 6; (1979) 143 CLR 190; Re Proprietary Article Trade Association of South Australia Inc [1949] SAStRp 5; [1949] SASR 88.
[59] ACA Act, s44.
[60] Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115.
[61] M McGregor–Lowndes, ‘Nonprofit Corporations—Reflections of Australia’s Largest Nonprofit Insolvency’ (1995) 5 Aust Jnl Corp Law 417.
[62] Note recommendations 11, 13 and 14 of the Industry Commission, Community Social Welfare Organisations in Australia, Report No. 45, Canberra, 16 October 1995.
[63] Note recommendations 11, 13 and 14 of the Industry Commission, Community Social Welfare Organisations in Australia, Report No. 45, Canberra, 16 October 1995.
[64] Commonwealth Authorities and Companies Bill 1997 (Cth) and the Financial Management Bill 1997 (Cth). On sector–specific regulatory categories, see eg Primary Industries and Energy Research and Development Act 1989 (Cth).
[65] MJ Trebilcock and JRS Prichard, ‘Crown Instrumentalities: The Calculus of Instrument Choice’ in JRS Prichard (ed), Crown Corporations in Canada, Butterworths, Toronto, 1983, pp 1–97; or within the school of public choice theory, M Horn, The Political Economy of Public Administration: Institutional Choice in the Public Sector, CUP, 1995, Ch 2.
[66] Similar provisions exist under other incorporation statutes: Associations Incorporation Act 1984 (NSW), ss48–9; Associations Incorporation Act 1991 (Qld) ss 49A–49N; Associations Incorporation Act 1981 (Vic), s10–11; Associations Incorporation Act 1964 (Tas), ss25A–25B; Corporations Law, Pt 2.3 Div 2.
[67] Cf. Corporations Law, s 123(2). Contrast, within the European legal tradition: SJ Stoljar: Groups and Entities, Canberra, ANU Press, 1973, Chs 1 & 2.
[68] The general law already displays some sensitivity to interpreting ‘oppression’ in non–commercial
decision–making contexts: Wayde v NSW Rugby League [1985] HCA 68; (1985) 180 CLR 459. See generally, Ford et al, Ford’s Principles of Corporations Law, 8th ed, Sydney, Butterworths, 1997,
para [11.450].
[69] Cf. Corporations Law, s315A and 317.
[70] For an excellent treatment of the main problems, which I hope might be removed by the tiered model, see P Sullivan, ‘The Needs of Prescribed bodies Corporate under the Native Title Act 1993’, Review, Vol. 2, and Sullivan ‘CS, WA’ (Rubibi Land Heritage Development Council), Review, Vol. 2.
[71] The identity of these bodies might require some attention for public law purposes: The Queen v Harry Phillip Hall (1992) 106 FLR 458 (ACA Act corporation not ‘a public authority under the Commonwealth’ for purposes of Crimes Act 1914, s29D) and Commonwealth Authorities and Corporations Bill 1997, cl 7(2): ACA Act corporation not a Commonwealth authority.
[72] See Footnote 50. Problems arising from the confluence of political representation and fiduciary public office has troubled ATSIC’s regional council system: see T Rowse, ‘The Political Identity of Regional Councillors’ and J Finalyson and A Dale, ‘Negotiating Indigenous Self–determination at the Regional Level’ in Shooting the Banker: Essays on ATSIC and Self–Determination, P Sullivan (ed), North Australia Research Unit, ANU, 1996 at pp 42–69 and
70–88 respectively.
[73] See eg I Ayres and J Braithwaite, Responsive Regulation, New York, OUP, Ch 6 and T Carney, Law at the Margins: Towards Social Participation?, Melbourne, OUP, 1991, pp 128 ff.
[74] Defined Corporations Law s45A: See Part 1, note 20.
[75] Cf. Corporations Law, Pt 3.6
Div 1A.
[76] On the effect of structured discretion on decision–making under the current migration legislation: M Aronson and B Dyer, Judicial Review of Administrative Action, LBC, Sydney, 1996, pp 309–310.
[77] See eg DF Martin and JD Finlayson's discussion of the Aurukun Shire Law Council as ‘a super–ordinate group of senior people with recognised authority’ under the Local Government (Aboriginal Lands) Act 1978 (Qld) in Linking accountability and self–determination in Aboriginal organisations, Centre for Aboriginal Economic Policy Research, Australian National University, Canberra, DP 116/1996, p 7.
[78] See eg Review, Vol. 1, pp 53–6.
[79] Text accompanying notes 47–50.
[80] I thank Jennifer Clarke for discussing many of the issues in this paper. For comments on an earlier draft, thanks to Mark Aronson, Peter Bailey, David Martin, Peta Spender, Roger Wettenhall and several anonymous reviewers. Responsibility for errors and opinions expressed resides with the author.