Commonwealth Coat of Arms of Australia

Corporations (Aboriginal and Torres Strait Islander) Act 2006

No. 124, 2006

Compilation No. 19

Compilation date: 4 April 2021

Includes amendments up to: Act No. 13, 2021

Registered: 28 April 2021

This compilation includes commenced amendments made by Act No. 69, 2020 and Act No. 141, 2020

About this compilation

This compilation

This is a compilation of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 that shows the text of the law as amended and in force on 4 April 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Chapter 1—Introduction

Part 11—Preliminary

Division 1—Preliminary

11 Short title

15 Commencement

110 Act binds Crown

115 Geographical application of Act

120 Act applies regardless of residence, place of formation etc.

125 Objects of this Act

130 Office of the Registrar of Aboriginal and Torres Strait Islander Corporations

135 Interpretative provisions

Part 12—Overview of Act

Division 6—Overview of Act

61 Overview of Act

65 Aboriginal and Torres Strait Islander corporations

610 Basic features of an Aboriginal and Torres Strait Islander corporation

615 Members and observers

620 Meetings

625 Officers

630 Record keeping, reporting requirements and books

635 Civil consequences of contravening civil penalty provisions

640 Lodgments and registers

645 Regulation and enforcement

650 External administration

655 Transfer of registration, deregistration and unclaimed property

660 Offences

665 Courts and proceedings

670 Administration

675 Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations

680 Interpreting this Act

Chapter 2—Aboriginal and Torres Strait Islander corporations

Part 21—Introduction

Division 16—Introduction

161 What this Chapter is about

165 Meaning of Aboriginal and Torres Strait Islander corporation

Part 22—Applications for registration of an Aboriginal and Torres Strait Islander corporation

Division 21—Application for new registration of an Aboriginal and Torres Strait Islander corporation

211 Application for registration

215 Matters to accompany application

2110 Registrar may seek further information

Division 22—Application to register existing body corporate under Part 23

221 Application for registration

225 Matters to accompany application

2210 Registrar may seek further information

Division 23—Application to register amalgamated corporation under Part 23

231 Application for registration

235 Matters to accompany application

2310 Registrar may seek further information

Part 23—Decisions on applications

Division 26—Registrar to decide application

261 Registrar to decide application

265 Registrar may grant application if application is incomplete etc.

2610 Registrar may grant application if some basic requirements are not met

2615 Registrar not to register trade unions etc.

Division 29—What are the basic requirements for registration?

291 Minimum number of members requirement

295 Indigeneity requirement

2910 Age of members requirement

2915 Preincorporation requirement

2917 Pretransfer of registration requirement

2918 Creditor notice requirement

2919 Preamalgamation requirements

2920 Internal governance rules requirement

2925 Name requirement

Division 32—Decisions on applications

321 Successful applications

325 Unsuccessful applications

Part 24—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

371 Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

375 Registrar may alter registered size of corporation after registration

3710 Small, medium and large corporations

3715 When an Aboriginal and Torres Strait Islander corporation controls an entity

3720 Counting employees

3725 Accounting standards

Part 25—Effects of registration

Division 42—Effects of registration

421 Corporation comes into existence on registration

423 Effect of registration of existing body corporate under Part 23

424 Effect of registration of amalgamated corporation under Part 23

425 Corporation’s name

4210 Members, directors, corporation secretary and contact person of corporation

4215 Registered office

4220 Document access address

4225 Corporation may have common seal

4230 Vesting of property in corporation on registration

4235 Body corporate registered as Aboriginal and Torres Strait Islander corporation (liability of members on winding up)

4240 Body corporate registered as Aboriginal and Torres Strait Islander corporation (modification by regulations)

4245 Registration of amalgamated corporation (liability of members on winding up)

4250 Registration of amalgamated corporation (modification by regulations)

Part 26—Arrangements and reconstructions

Division 45—Application of Corporations Act arrangements and reconstructions provisions

451 Applying Corporations Act arrangements and reconstructions provisions to Aboriginal and Torres Strait Islander corporations

Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation

Part 31—Introduction

Division 52—Introduction

521 What this Chapter is about

Part 32—Rules dealing with the internal governance of corporations

Division 57—Introduction

571 What this Part is about

575 List of internal governance rules

Division 60—What are the replaceable rules and when do they apply to a corporation?

601 Replaceable rules

605 Corporation’s constitution can modify or replace replaceable rules

6010 Effect of constitution and replaceable rules

6015 Failure to comply with replaceable rules

6020 Modification by regulations

Division 63—What are the internal governance rules of a corporation?

631 Meaning of internal governance rules

Division 66—What are the internal governance rules requirements?

661 Requirements

665 Meaning of cover the matters provided for in the replaceable rules

Division 69—Constitutions and amendment and replacement of constitutions

Subdivision 69A—Constitution on registration

691 Constitution of an Aboriginal and Torres Strait Islander corporation

Subdivision 69B—Constitutional changes after registration

695 Overview—ways a constitution may be changed

6910 Meaning of constitutional change etc.

6915 Extra requirements for constitutional change in constitution

6920 Corporation to lodge copy of constitutional changes

6925 Special administrator to lodge copy of constitutional changes

6930 Registrar to determine if constitutional change should be registered

6935 Registrar may change an Aboriginal and Torres Strait Islander corporation’s constitution on own initiative

6940 Date of effect of constitutional change

Division 72—Other matters concerning constitutions etc.

721 Registrar may direct corporation to lodge constitution

725 Corporation must provide governance material to members

7210 Constitution may limit powers

Part 33—Minimum number of members of Aboriginal and Torres Strait Islander corporations

Division 77—Minimum number of members of Aboriginal and Torres Strait Islander corporations

771 What this Part is about

775 Minimum number of members requirement

7710 Registrar may exempt if appropriate and reasonable to do so

7715 Registrar may determine a different number to number requested

7720 Earlier determination taken to be revoked

7725 Notice to be given

Part 34—Names

Division 82—Introduction

821 What this Part is about

Division 85—What names may a corporation have?

851 Corporation’s name requirements

855 Available names

8510 Acceptable abbreviations

8515 Using a name and ICN on documents

8520 Exception to requirement to have ICN on receipts

8525 Regulations may exempt from requirement to set out information on documents

Division 88—How is a corporation’s name changed?

881 Corporation changing its name

885 Registrar’s power to direct corporation to change its name

8810 If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate

8815 If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate

8820 Registrar must issue new certificate if name changes

8825 Effect of name change

Part 35—Corporation powers and how they are exercised

Division 93—Introduction

931 What this Part is about

Division 96—What are a corporation’s powers?

961 Legal capacity and powers

Division 99—How are a corporation’s powers exercised?

991 Agent exercising a corporation’s power to make contracts etc.

995 Execution of documents (including deeds) by the corporation itself

Part 36—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

Division 104—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

1041 Entitlement to make assumptions

1045 Assumptions that can be made under section 1041

10410 Information available to the public from Registrar does not constitute constructive notice

Part 37—Registered office or document access address

Division 109—Introduction

1091 What this Part is about

Division 112—Registered office

1121 General

1125 Corporation to have registered office

11210 Registrar may change address of registered office to a director’s address

11215 Corporation’s name must be displayed

11220 Address of registered office etc.

Division 115—Document access address

1151 Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations

1155 Corporation to have document access address

11510 Registrar may change document access address to a director’s address

11515 Registrar may direct corporation to change the location of its document access address

11520 Address of document access address

Part 38—Service on Aboriginal and Torres Strait Islander corporations

Division 120—Service on Aboriginal and Torres Strait Islander corporations

1201 Service on Aboriginal and Torres Strait Islander corporation

Chapter 4—Members and observers

Part 41—Introduction

Division 130—Introduction

1301 What this Chapter is about

Part 42—Members

Division 135—Introduction

1351 What this Part is about

Division 138—Who is a member of an Aboriginal and Torres Strait Islander corporation?

1381 Meaning of member

Division 141—Membership of Aboriginal and Torres Strait Islander corporations

Subdivision 141A—Introduction

1411 Overview

Subdivision 141B—Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation

1415 Minimum number of members requirement

14110 Indigeneity requirement

14115 Age of members requirement

Subdivision 141C—A person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation

14120 Eligibility for membership

14125 Corporation may have other eligibility requirements for membership

Division 144—How to become a member of an Aboriginal and Torres Strait Islander corporation

1441 How does a person become a member?

1445 Application to corporation

14410 Determination of applications for membership

14415 Fees for membership and being an observer

Division 147—Obligations of members

1471 Obligation to contribute on winding up

1475 Corporation may impose other member obligations

14710 Liability of corporation members

Division 150—How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation?

Subdivision 150A—General

1501 Cessation of membership

Subdivision 150B—Resignation of membership

15010 Resignation

Subdivision 150C—Cancellation of membership

15015 General

15020 Member of corporation that is not a registered native title body corporate not eligible for membership etc. (replaceable rule—see section 601)

15022 Member of registered native title body corporate not eligible for membership etc.

15025 Member not contactable

15030 Member is not an Aboriginal and Torres Strait Islander person

15035 Member misbehaves

Division 153—Can there be different classes of members?

1531 Different classes of members

Part 43—Observers

Division 158—Observers

1581 What this Part is about

1585 Observers

Part 44—Protection of members’ interests

Division 163—Rights and remedies to protect interests of members

1631 Rights and remedies

Division 166—Oppressive conduct of affairs

1661 Grounds for Court order

1665 Orders the Court can make

16610 Who can apply for an order?

16615 Requirement for person to lodge order

Division 169—When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation?

1691 Bringing, or intervening in, proceedings on behalf of a corporation

1695 Applying for and granting leave

16910 Substitution of another person for the person granted leave

16915 Effect of ratification by members

16920 Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave

16925 General powers of the Court

16930 Power of the Court to make costs orders

Division 172—What protections apply to variations or cancellations of class rights?

1721 Varying and cancelling class rights

1725 Certain actions taken to vary rights etc

17210 Variation, cancellation or modification without unanimous support of class

17215 Variation, cancellation or modification with unanimous support of class

Division 175—When may a member inspect a corporation’s books?

1751 Order for inspection of books of corporation

1755 Ancillary orders

17510 Disclosure of information acquired in inspection

17515 Corporation or directors may allow member to inspect books (replaceable rule—see section 601)

Part 45—Registers of members and former members

Division 180—Registers of members and former members

1801 Aboriginal and Torres Strait Islander corporations to maintain register of members

1805 Information on the register of members

18010 Aboriginal and Torres Strait Islander corporations to maintain register of former members

18015 Information on the register of former members

18020 Location and inspection of registers

18022 Register of members and register of former members may be maintained in one document

18025 Right to inspect and get copies

18030 Aboriginal and Torres Strait Islander corporation to make register of members available at AGM

18035 Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members or register of former members

18040 Correction of register of members or register of former members

18045 Evidentiary value of registers

Division 183—Use of information on the register of members or register of former members

1831 Use of information on register of members or register of former members

Part 46—Exemption from operation of certain provisions of this Chapter

Division 187—Exemption from operation of certain provisions of this Chapter

1871 What this Part is about

1875 Exemption from certain provisions of this Chapter

18710 Registrar may make determination even if application is incomplete

18715 Registrar’s power to make determinations

18720 Criteria for determinations

Chapter 5—Meetings

Part 51—Introduction

Division 193—Introduction

1931 What this Chapter is about

Part 52—General meetings

Division 198—Introduction

1981 What this Part is about

Division 201—What are the rules concerning general meetings?

Subdivision 201A—Who may call general meetings?

2011 Director may call meetings (replaceable rule—see section 601)

2015 Request by members for directors to call general meetings

20110 When must directors comply with members’ request?

20115 When must a requested meeting be held?

Subdivision 201B—How to call general meetings

20120 Amount of notice of general meetings

20125 Notice of general meeting to members, officers and observers

20130 Auditor entitled to notice and other communications

20135 Contents of notice of general meeting

Subdivision 201C—Members’ rights to put resolutions etc. to general meeting

20140 Members’ resolutions

20145 Notice of members’ resolutions

20150 Members’ statements to be distributed

Subdivision 201D—Holding general meetings

20155 Purpose

20160 Time and place for general meeting

20165 Technology

20170 Quorum

20175 Chairing general meeting (replaceable rule—see section 601)

20180 Auditor’s right to be heard at general meetings

20185 Adjourned meetings

Subdivision 201E—Proxies

20190 Who may appoint a proxy (replaceable rule—see section 601)

20195 Rights of proxies

201100 Appointing a proxy

201105 Proxy documents

201110 Body corporate representative

Subdivision 201F—Voting at general meetings

201115 How many votes a member has (replaceable rule—see section 601)

201120 Objections to right to vote (replaceable rule—see section 601)

201125 How voting is carried out (replaceable rule—see section 601)

201130 Matters on which a poll may be demanded

201135 When a poll is effectively demanded

201140 When and how polls must be taken (replaceable rule—see section 601)

Subdivision 201G—First general meeting and annual general meetings

201145 Corporation must hold first general meeting within 3 months of registration

201150 Corporation must hold AGM

201155 Extension of time for holding AGM

201160 Business of AGM

201165 Questions and comments by members on corporation management at AGM

201170 Questions by members of auditors at AGM

Division 204—Resolutions without a general meeting

2041 Circulating resolutions

2045 Resolutions of 1 member corporations

Part 53—Directors’ meetings

Division 209—Introduction

2091 What this Part is about

Division 212—What are the rules concerning directors’ meetings?

2121 Constitution to provide for meetings

2125 Calling directors’ meetings (replaceable rule—see section 601)

21210 Use of technology

21215 Chairing directors’ meetings (replaceable rule—see section 601)

21220 Quorum at directors’ meetings

21225 Passing of directors’ resolutions (replaceable rule—see section 601)

Division 215—Resolutions and declarations without meetings

2151 Circulating resolutions of corporation with more than 1 director (replaceable rule—see section 601)

2155 Resolutions and declarations of 1 director corporation

Part 54—Minutes of meetings

Division 220—Minutes of meetings

2201 What this Part is about

2205 Minutes

22010 Members’ access to minutes

Part 55—Exemption from operation of this Chapter

Division 225—Exemption from operation of this Chapter

2251 What this Part is about

2255 Exemption from the provisions of this Chapter

22510 Registrar may make determination even if application is incomplete

22515 Registrar’s power to make determinations

22520 Criteria for determinations

Chapter 6—Officers

Part 61—Introduction

Division 235—Introduction

2351 What this Chapter is about

Part 62—Appointment, remuneration and cessation of appointment of directors

Division 240—Introduction

2401 What this Part is about

Division 243—Number of directors

2431 Minimum number of directors

2435 Maximum number of directors

Division 246—Appointment of directors

2461 Eligibility for appointment as a director

2465 Majority of director requirements

24610 Consent to act as director

24615 Corporation may appoint a director (replaceable rule—see section 601)

24620 Directors may appoint other directors to make up a quorum (replaceable rule—see section 601)

24625 Term of appointment

24630 Alternate directors (replaceable rule—see section 601)

24635 Effectiveness of acts by directors

Division 249—Resignation, retirement or removal of directors

2491 How does a person cease to be a director?

2495 Director may resign

24910 Removal by members

24915 Removal by other directors

Division 252—Remuneration of directors

2521 Remuneration

2525 Members may obtain information about directors’ remuneration

Part 63—Appointment of secretaries and contact persons

Division 257—Appointment of secretaries and contact persons

2571 What this Part is about

2575 Requirement to have a secretary or contact person

25710 Who may be a secretary or contact person

25715 Consent to act as secretary or contact person

25720 How a secretary or contact person is appointed

25725 Director to be contact person in certain circumstances

25730 Contact person must pass on communications received

25735 Secretary must pass on communications received

25740 Effectiveness of acts by secretaries

25745 Terms and conditions of office for secretaries (replaceable rule—see section 601)

25750 Terms and conditions of contact person’s appointment (replaceable rule—see section 601)

Part 64—Duties and powers of directors and other officers and employees

Division 262—Introduction

2621 What this Part is about

Division 265—General duties

2651 Care and diligence—civil obligation only

2655 Good faith—civil obligations

26510 Use of position—civil obligations

26515 Use of information—civil obligations

26520 Acts done to comply with Native Title legislation obligations

26525 Good faith, use of position and use of information—criminal offences

26530 Interaction of sections 2651 to 26525 with other laws etc.

26535 Directors of whollyowned subsidiaries

26540 Responsibility of secretaries for certain contraventions

26545 Meaning of reasonable reliance on information or advice provided by others

26550 Responsibility for actions of delegate

Division 268—Duties in relation to disclosure of, and voting on matters involving, material personal interests

2681 Material personal interest—director’s duty to disclose

2685 Interest as common law holder of native title

26810 Director may give other directors standing notice about an interest

26815 Interaction of sections 2681 and 26810 with other laws etc.

26820 Restrictions on voting

26825 Registrar’s power to make declarations and class orders

Division 271—Duty to discharge certain trust liabilities

2711 Directors liable for debts and other obligations incurred by corporation as trustee

Division 274—Powers of directors

2741 Powers of directors (replaceable rule—see section 601)

2745 Negotiable instruments (replaceable rule—see section 601)

27410 Delegation

27415 Right of access to corporation books

Part 65—Disqualification from managing corporations

Division 279—Disqualification from managing corporations

2791 Disqualified person not to manage corporations

2795 Automatic disqualification

27910 Extension of period of automatic disqualification

27915 Court power of disqualification—contravention of civil penalty provision

27920 Court power of disqualification—insolvency and nonpayment of debts

27925 Court power of disqualification—repeated contraventions of Act

27930 Registrar’s power of disqualification

27935 Court power to grant leave

Part 66—Member approval needed for related party benefit

Division 284—Need for member approval

2841 Need for member approval for financial benefit

2845 Consequences of breach

28410 Exemptions

Division 287—Exceptions to the requirement for member approval

2871 Remuneration and reimbursement for officer or employee

2875 Benefit to or by closelyheld subsidiary

28710 Benefits to members that do not discriminate unfairly

28712 Benefits given to comply with Native Title legislation obligations

28715 Court order

Division 290—Procedure for obtaining member approval

2901 Resolution may specify matters by class or kind

2905 Corporation must lodge material that will be put to members with the Registrar

29010 Requirements for explanatory statement to members

29015 Registrar may comment on proposed resolution

29020 Requirements for notice of meeting

29025 Other material put to members

29030 Proposed resolution cannot be varied

29035 Voting by or on behalf of related party interested in proposed resolution

29040 Voting on the resolution

29045 Notice of resolution to be lodged

29050 Declaration by court of substantial compliance

Division 293—Related parties and financial benefits

2931 Related parties

2935 Giving a financial benefit

Division 296—Interaction with other rules

2961 General duties still apply

Part 67—Public information about directors, secretaries and contact persons

Division 301—Introduction

3011 What this Part is about

Division 304—Information to be provided

3041 Director, alternate director, secretary or contact person may notify the Registrar of resignation or retirement

3045 Notice of name and address of directors and secretaries to the Registrar

30410 Director, alternate director, secretary and contact person must give information to corporation

30415 Address for officers

Division 307—Registrar may ask for information

3071 Registrar’s power to ask for information about person’s position as director, secretary or contact person

Part 67A—Director identification numbers

3081 What this Part is about

3085 Giving and cancelling director identification numbers

30810 Applying for a director identification number

30815 Eligible officers

30820 Requirement to have a director identification number

30825 Requirement to apply for a director identification number

30830 Commonwealth Registrar may extend application periods

30835 Infringement notices

30840 Applying for additional director identification numbers

30845 Misrepresenting director identification numbers

Part 68—Exemption from operation of certain provisions of this Chapter

3101 What this Part is about

3105 Exemption from certain provisions of this Chapter

31010 Registrar may make determination even if application is incomplete

31015 Registrar’s power to make determinations

31020 Criteria for determinations

Chapter 7—Record keeping, reporting requirements and books

Part 71—Introduction

Division 317—Introduction

3171 What this Chapter is about

Part 72—Record keeping requirements

Division 322—Record keeping requirements

3221 What this Part is about

3225 Obligation to keep copy of constitution and records about officers, contact person, etc.

32210 Obligation to keep financial records

32215 Physical format

32220 Place where records are kept

32225 Director access

Part 73—Reporting requirements

Division 327—Overview of reporting obligations

3271 Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge

Division 330—General report for each financial year

3301 Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year

3305 Contents of general report

33010 General report to be lodged with Registrar

Division 333—Financial and other reports required by the regulations

3331 What this Division is about

3335 Regulations may require financial reports, directors’ reports and other reports to be prepared

33310 Contents of reports

33315 Other requirements in relation to report

33320 Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required

Division 336—Registrar may increase reporting requirements

3361 Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation

3365 Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation

Division 339—Audit of financial reports

Subdivision 339A—Introduction

3391 What this Division is about

3395 Application of Division

33910 When financial report required to comply with accounting standards

33915 When audit required to be conducted in accordance with auditing standards

33920 Lead and review auditors

33925 Professional members of the audit team

Subdivision 339B—Conduct of the audit

33930 Auditor to form opinion

33935 Auditor obligations in relation to auditing standards

33940 Auditor’s report

33945 Other requirements in relation to auditor’s report

33950 Auditor’s independence declaration

33955 Audit working papers to be retained for 7 years

Subdivision 339C—Qualification, experience and registration

33960 Qualification and experience: individual auditor

33965 Qualification and experience: audit firm

33970 Registration requirements for appointment of company as auditor

Subdivision 339D—Auditor independence

33975 Independence of auditors: application of Corporations Act auditor independence provisions

33980 Independence of auditors: alternative independence requirements

Subdivision 339E—Auditor’s powers and duties

33985 Auditor’s power to obtain information

33990 Reporting to the Registrar

33995 Assisting auditor

Subdivision 339F—Appointment and removal of auditors

339100 Appointment and removal of auditors

Division 342—Financial reporting to members

3421 What this Division is about

3425 Annual financial reporting to members

34210 Deadline for giving member copy of report

Division 345—Consolidated financial report

3451 Directors and officers of controlled entity to give information

3455 Auditor’s power to obtain information from controlled entity

34510 Controlled entity to assist auditor

34515 Application of sections 3451 to 34510 to entity that has ceased to be controlled

Division 348—Lodging reports

3481 Lodging annual reports with the Registrar

3485 Relodgment if report amended after lodgment

Part 74—Registrar may exempt from record keeping and reporting requirements

Division 353—Registrar may exempt from record keeping and reporting requirements

3531 What this Part is about

3533 Exemption from the provisions of this Chapter

3535 Registrar may make determination even if application is incomplete

35310 Registrar’s power to make determinations

Part 75—Criteria for determining level of reporting requirements

Division 358—Criteria for determining level of reporting requirements

3581 What this Part is about

3585 Criteria for determinations about level of reporting requirements

35810 Reporting obligations

Part 76—Sanctions for contraventions of record keeping and reporting requirements

Division 363—Sanctions for contraventions of record keeping and reporting requirements

3631 Sanctions

Part 77—Modifications of record keeping and reporting requirements by regulations

Division 368—Modifications of record keeping and reporting requirements by regulations

3681 Modification by regulations

Part 78—Books

Division 373—Introduction

3731 What this Part is about

Division 376—When and where may books be inspected?

3761 Inspection of books

3765 Translations of instruments and books

37610 Court may compel compliance

37615 Admissibility of books in evidence

37620 Form of books

37625 Protection of books

37630 Evidentiary value

37635 Falsification of books

Chapter 8—Civil consequences of contravening civil penalty provisions

Division 386—Civil consequences of contravening civil penalty provisions

3861 Declarations of contravention

3865 Declaration of contravention is conclusive evidence

38610 Pecuniary penalty orders

38615 Compensation orders—civil penalty provisions

38620 Who may apply for a declaration or order

38625 Time limit for application for a declaration or order

38630 Civil evidence and procedure rules for declarations of contravention and civil penalty orders

38635 Civil proceedings after criminal proceedings

38640 Criminal proceedings during civil proceedings

38645 Criminal proceedings after civil proceedings

38650 Evidence given in proceedings for penalty not admissible in criminal proceedings

38655 Registrar requiring person to assist

38660 Relief from liability for contravention of civil penalty provision

Chapter 9—Lodgments and registers

Part 91—Introduction

Division 396—Introduction

3961 What this Chapter is about

Part 92—Lodgments with the Registrar

Division 401—Introduction

4011 What this Part is about

Division 404—What is the form in which documents may be lodged?

4041 Forms for documents to be lodged with the Registrar

4045 Signing documents lodged with the Registrar

40410 Documents lodged with the Registrar electronically

40415 Relodging of lost registered documents

Division 407—Registrar’s powers

4071 Registrar may refuse to receive or register documents

4075 Registrar may require additional information

40710 Registrar may require information from persons on a register

40715 Telephone or email notice of certain changes

40720 Registrar may destroy or dispose of lodged documents

Division 410—Courts power if documents not lodged

4101 Court may make certain orders

Part 93—Registers

Division 415—Introduction

4151 What this Part is about

Division 418—Registers to be kept

4181 Registers

4185 Form of registers

41810 Register of Aboriginal and Torres Strait Islander Corporations

41815 Register of Disqualified Officers

Division 421—What information may a person obtain from the Registrar?

4211 Inspection and production of records

4215 Requests and certification of copy or extract etc.

Division 424—Validity and use of information etc. obtained from a register

4241 Validity of copy or extract

4245 Use in court proceedings etc. of documents issued by Registrar

42410 Registrar’s certificate that person was a director etc.

Chapter 10—Regulation and enforcement

Part 101—Introduction

Division 434—Introduction

4341 What this Chapter is about

Part 102—Regulation of Aboriginal and Torres Strait Islander corporations

Division 439—Regulation of Aboriginal and Torres Strait Islander corporations

4391 What this Part is about

4395 Registrar may convene meetings of interested persons

43910 Registrar may call a general meeting (other than an AGM)

43915 Registrar may call an AGM

43920 Registrar may require compliance with Act etc.

Part 103—Enforcement

Division 444—Introduction

4441 What this Part is about

Division 447—Authorised officers

4471 Appointment of authorised officers

4475 Identity cards

Division 450—Purposes for which powers under this Part may be exercised

4501 Purposes for which power under this Part may be exercised

Division 453—Examination of books and persons

4531 Examination of books

4535 Production of books or attendance to answer questions

45310 Remuneration of authorised officer

Division 456—Warrants for books not produced

Subdivision 456A—Warrants applied for in person

4561 Application for warrant to seize books not produced

4565 Grant of warrant

45610 Powers where books produced or seized

Subdivision 456B—Warrants by telephone or other electronic means

45615 Applying for warrants by telephone or other electronic means

45620 Issuing warrants by telephone etc.

45625 Unsigned warrants by telephone etc. in court proceedings

Subdivision 456C—Offences relating to warrants by telephone or other electronic means

45630 Offence for stating incorrect names in warrants by telephone etc.

45635 Offence for unauthorised form of warrant

45640 Offence for execution etc. of unauthorised form of warrant

45645 Offence for giving unexecuted form of warrant

Subdivision 456D—Warrant details to be given to occupier

45650 Details of warrant to be given to occupier etc.

Part 104—Offences relating to regulatory and enforcement powers of Registrar

Division 461—Offences relating to regulatory and enforcement powers of Registrar

4611 Obstructing Registrar or interfering with meeting called by Registrar etc.

4615 False information

46110 Concealing books relevant to investigation

46115 Selfincrimination

Part 105—Protection for whistleblowers

Division 466—Which disclosures qualify for protection under this Part?

4661 Disclosures qualifying for protection

Division 469—Effects of disclosure

4691 Disclosure that qualifies for protection not actionable etc.

4695 Victimisation prohibited

46910 Right to compensation

Division 472—Confidentiality requirement

4721 Confidentiality requirements for corporations, corporation officers and employees and auditors

Chapter 11—External administration

Part 111—Introduction

Division 482—Introduction

4821 What this Chapter is about

Part 112—Special administration

Division 487—Special administration of Aboriginal and Torres Strait Islander corporation

4871 Registrar may put Aboriginal and Torres Strait Islander corporation under special administration

4875 Grounds for special administration

48710 Show cause notice procedure

48715 Extension of period of special administration

48720 Registrar may terminate special administration

48725 References to corporation under special administration

Division 490—Appointment of special administrator

4901 Registrar may appoint special administrator

4905 Period of appointment

Division 493—Notice requirements

4931 Notice of special administration determination or appointment of special administrator

Division 496—Effect of appointment of special administrator on officers of the corporation

4961 General rule that offices of directors and secretary vacated when special administrator appointed

4965 Registrar may determine that offices not vacated in certain circumstances

49610 Powers of officers can only be exercised by, or with the consent of, special administrator

49615 Only special administrator can deal with corporation’s property

49620 Order for compensation where officer involved in void transaction

Division 499—Function, duties and powers of special administrator

4991 Function of special administrator

4995 Powers of special administrator

49910 Applying Corporations Act provisions to Aboriginal and Torres Strait Islander corporation that is under special administration

Division 502—Special administrator to report to Registrar

5021 Report to Registrar

Division 505—Termination of special administrator’s appointment

5051 Termination of appointment of special administrator

5055 Grounds for terminating appointment

50510 Registrar to appoint new special administrator in certain circumstances

Division 508—Transition to normal control of the corporation’s affairs at end of special administration

5081 Special administrator to ensure that there will be directors when corporation ceases to be under special administration

5085 Election of directors to take over affairs of corporation when corporation ceases to be under special administration

Division 511—Miscellaneous

5111 Remuneration of special administrator

Part 113—Receivers, and other controllers, of property of corporations

Division 516—Receivers, and other controllers, of property of corporations

5161 Applying Corporations Act receiver provisions to Aboriginal and Torres Strait Islander corporations

Part 114—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement

Division 521—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement

5211 Applying Corporations Act administration provisions to Aboriginal and Torres Strait Islander corporations

5215 Administrator’s capacity to act as trustee

52110 Corporations Act administrator cannot be appointed if special administrator appointed

52115 Effect of appointment of special administrator on Corporations Act administrator

Part 115—Winding up

Division 526—Winding up

5261 Court may order winding up

5265 Grounds for Court ordered winding up

52610 Acts etc. done to comply with Native Title legislation requirement

52615 Who may apply to court for winding up order

52620 Voluntary winding up

52625 Distribution of surplus assets in winding up by Court

52630 Distribution of surplus assets in voluntary winding up

52635 Applying Corporations Act winding up provisions to Aboriginal and Torres Strait Islander corporations

52640 Application of Corporations Act prewinding up provisions

Part 116—Insolvent trading and creditordefeating dispositions

Division 531—Insolvent trading and creditordefeating dispositions

5311 Applying Corporations Act insolvent trading and creditordefeating disposition provisions to Aboriginal and Torres Strait Islander corporations

5315 Sections 588G, 588GAB and 588GAC of Corporations Act prevail over conflicting Native Title legislation obligations

Part 117—Employees’ entitlements

Division 536—Employees’ entitlements

5361 Applying Corporations Act employees’ entitlements provisions to Aboriginal and Torres Strait Islander corporations

Chapter 12—Transfer of registration, deregistration and unclaimed property

Part 121—Transfer of registration to another system

Division 540—Transfer of registration

5401 Transferring registration

5405 Applying to transfer registration

54010 Registrar makes transfer of registration declaration

54015 Registrar to deregister corporation

Part 122—Deregistration

Division 546—Deregistration

5461 Deregistration—voluntary

5465 Deregistration—Registrar initiated

54610 Deregistration—following amalgamation or winding up

54615 Registered native title body corporate

54620 Effect of deregistration

54625 What the Registrar does with the property

54630 Registrar’s power to fulfil outstanding obligations of deregistered corporation

54635 Claims against insurers of deregistered corporation

54640 Reinstatement

54645 Regulations may modify Division in relation to statutory Indigenous land trusts

Part 123—Unclaimed property

Division 551—Unclaimed property

5511 Unclaimed property

5515 Registrar to deal with unclaimed property

55110 Registrar and Commonwealth not liable to pay calls on shares etc.

55115 Disposition of money that is unclaimed property etc.

55120 Establishment of the Aboriginal and Torres Strait Islander Corporations Unclaimed Money Account

55125 Credits of amounts to Account

55130 Purposes of Account

55135 Claims of disposition of money to incorrect payee

55140 Commonwealth or Registrar not liable for loss or damage

Chapter 13—Offences

Part 131—Offences about false or misleading statements etc.

Division 561—Offences about false or misleading statements etc.

5611 False or misleading statements

5615 False information etc.

Part 132—General matters relating to offences

Division 566—General matters relating to offences

5661 Penalties for bodies corporate

5665 Penalty notices

56610 Continuing offences

56615 Time for instituting criminal proceedings

56620 Privilege against selfincrimination not available to bodies corporate in certain proceedings

56625 Certain persons to assist in prosecutions

Chapter 14—Courts and proceedings

Part 141—Powers of courts

Division 576—Powers of courts

5761 Power to grant relief

5765 Power of Court to give directions with respect to meetings ordered by the Court

57610 Appeals from decisions of receivers, liquidators etc.

57615 Irregularities

57620 Power of Court to prohibit payment or transfer of money, financial products or other property

57625 Injunctions

57630 Effect of sections 57620 and 57625

57635 Power of Court to punish for contempt of Court

Part 142—Proceedings

Division 581—Proceedings

5811 The Registrar’s power to intervene in proceedings

5815 Civil proceedings not to be stayed

58110 Standard of proof

58115 Evidence of contravention

58120 Costs

58125 Vesting of property

58130 Civil proceedings in relation to registered native title bodies corporate

Part 143—Jurisdiction and procedure of courts

Division 586—Civil jurisdiction

Subdivision 586A—Introduction

5861 Operation of Division

Subdivision 586B—Conferral of jurisdiction

5865 Jurisdiction of Federal Court and State and Territory Supreme Courts

58610 Jurisdiction of Family Court and State Family Courts

58615 Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)

58620 Jurisdiction of lower courts

58625 Appeals

58630 Courts to act in aid of each other

Subdivision 586C—Transfer of proceedings

58635 Transfer of proceedings by the Federal Court and State and Territory Supreme Courts

58640 Transfer of proceedings by Family Court and State Family Courts

58645 Transfer of proceedings in lower courts

58650 Further matters for a court to consider when deciding whether to transfer a proceeding

58655 Transfer may be made at any stage

58660 Transfer of documents

58665 Conduct of proceedings

58670 Rights of appearance

58675 Limitation on appeals

Subdivision 586D—Rules of court

58680 Rules of the Federal Court

58685 Rules of the Supreme Court

58690 Rules of the Family Court

Division 589—Criminal jurisdiction

5891 Operation of Division

5895 Jurisdiction of courts

58910 Laws to be applied

Chapter 15—Administration

Part 151—Introduction

Division 599—Introduction

5991 What this Chapter is about

Part 152—Protection of information

Division 604—Protection of information

6041 What this Part is about

6045 Protected information

60410 Registrar’s obligations in relation to protected information

60415 Special administrator’s obligations in relation to protected information

60420 Consultant’s obligations in relation to protected information

60425 Authorised use or disclosure

Part 153—Protection from liability for Registrar, Minister etc.

Division 609—Protection from liability for Registrar, Minister etc.

6091 Protection from liability for Minister, Registrar etc.

Part 154—Review of decisions

Division 614—Introduction

6141 What this Part is about

Division 617—Reviewable decisions

6171 Reviewable decisions

6175 Deadlines for making reviewable decisions

61710 Notice of reviewable decision and review rights

Division 620—Internal review of reviewable decisions

6201 Registrar may reconsider reviewable decisions on own initiative

6205 Reconsideration of reviewable decisions

Division 623—AAT review of reviewable decisions

6231 AAT review of reviewable decisions

Part 155—Fees

Division 628—Fees

6281 Fees

6285 Lodgment of document without payment of fee

62810 Doing act without payment of fee

62815 Effect of sections 6285 and 62810

62820 Debt due to the Commonwealth

62825 Payment of fee does not give right to inspect or search

Part 156—Regulations

Division 633—Regulations

6331 General regulation making power

6335 Regulations concerning registered native title bodies corporate

Part 157—Approved forms

Division 638—Approved forms

6381 Registrar may approve forms

Chapter 16—Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations

Part 161—Introduction

Division 648—Introduction

6481 What this Chapter is about

Part 162—Appointment of the Registrar and Deputy Registrars

Division 653—Appointment of Registrar and Deputy Registrars

6531 Registrar of Aboriginal and Torres Strait Islander Corporations

6535 Deputy Registrars of Aboriginal and Torres Strait Islander Corporations

Part 163—Registrar’s functions and powers

Division 658—Registrar’s functions and powers

6581 Functions of the Registrar

6585 Aims of the Registrar

65810 Powers of the Registrar

65815 Registrar to have a seal

65820 Judicial notice of certain matters

Part 164—Matters concerning the Registrar’s and Deputy Registrars’ appointments

Division 663—Matters concerning the Registrar’s and Deputy Registrars’ appointments

6631 Registrar’s remuneration

6635 Resignation

66310 Termination of Registrar’s appointment

66315 Termination of Deputy Registrar’s appointment

66320 Disclosure of interests

66325 Acting appointments

66330 Leave of absence

66335 Outside employment

Part 165—Delegation

Division 668—Delegation

6681 Delegation by Registrar

6685 Subdelegation by Deputy Registrar

Part 166—Staffing

Division 673—Staffing

6731 Staff assisting the Registrar and Deputy Registrar

6735 Engagement of consultants etc. by the Registrar

Chapter 17—Interpreting this Act

Part 171—Meaning of some important concepts

Division 683—Directors and officers of Aboriginal and Torres Strait Islander corporations

6831 Meaning of director and officer

Division 686—Associates

6861 Effect of Division

6865 Associates of bodies corporate

68610 General

68615 Exclusions

Division 689—Subsidiaries and control

6891 What is a subsidiary

6895 Control of a body corporate’s board

68910 Matters to be disregarded

68915 References in this Division to a subsidiary

68920 Related bodies corporate

68925 Control

Part 172—Interpretation of other expressions

Division 694—Interpretation of other expressions

6941 Giving information

6945 Doing acts

69410 Signing

69415 Business affairs of a body corporate

69420 Business affairs of a natural person

69425 Business affairs of a partnership

69430 Business affairs of a trust

69435 Meaning of court and Court

69440 Entities

69445 Entities connected with a corporation (including an Aboriginal and Torres Strait Islander corporation)

69450 Extension of period for doing an act

69455 Involvement in contraventions

69460 Possession

69465 Public document of a body corporate

69470 Receivers and managers

69475 Securities

69480 Solvency and insolvency

69485 Meaning of chief executive officer function

69490 Applications to be in writing

69495 Effect of certain contraventions of this Act

694100 Effect of provisions empowering a person to require or prohibit conduct

694105 Calculation of time

694110 Performance of functions by Registrar or Deputy Registrar includes reference to delegate etc.

694115 Certain family relationships

694120 Commonwealth Registrar

Part 173—Dictionary

Division 700—Dictionary

7001 Dictionary

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

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 1Introduction

Part 11Preliminary

Division 1Preliminary

11  Short title

  This Act may be cited as the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

15  Commencement

  This Act commences on 1 July 2007.

110  Act binds Crown

 (1) This Act (except Part 5.8 of the Corporations Act as applied by sections 5161, 5211, 52635 and 52640) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

 (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.

115  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.

120  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.

125  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.

130  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.

135  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 12Overview of Act

Division 6Overview of Act

61  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.

65  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.

610  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.

615  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.

620  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.

625  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.

630  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.

635  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.

640  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.

645  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.

650  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.

655  Transfer of registration, deregistration and unclaimed property

  Chapter 12 deals with:

 (a) the transfer of an Aboriginal and Torres Strait Islander corporation’s registration to another Commonwealth, State or Territory system; and

 (b) the deregistration of an Aboriginal and Torres Strait Islander corporation; and

 (c) unclaimed property of an Aboriginal and Torres Strait Islander corporation that has been deregistered.

660  Offences

  Chapter 13 deals with general offences against this Act.

665  Courts and proceedings

  Chapter 14 deals with the jurisdiction of courts to hear matters under this Act, injunctions and court proceedings.

670  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).

675  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.

680  Interpreting this Act

  Chapter 17 contains the interpretation provisions of this Act and the definitions.

Chapter 2Aboriginal and Torres Strait Islander corporations

Part 21Introduction

Division 16Introduction

161  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 165); and

 the application for registration (see Part 22); and

 decisions on applications (see Part 23); and

 registration of small, medium and large corporations (see Part 24); and

 the effects of registration (see Part 25).

165  Meaning of Aboriginal and Torres Strait Islander corporation

  An Aboriginal and Torres Strait Islander corporation is a corporation registered under this Act.

Part 22Applications for registration of an Aboriginal and Torres Strait Islander corporation

Division 21Application for new registration of an Aboriginal and Torres Strait Islander corporation

211  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 30415).

 (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;

 (d) the person’s address;

 (e) the person’s date and place of birth (if known);

 (ea) the person’s director identification number, or the fact that the person does not have a director identification number;

 (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.

215  Matters to accompany application

  The following must accompany an application under section 211:

 (a) evidence of the decisions referred to in section 2915 (if applicable);

 (b) copies of the consents referred to in subsection 211(1).

Note: Under the internal governance rules requirement (see section 2920), 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 261 in respect of the application.

2110  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).

Division 22Application to register existing body corporate under Part 23

221  Application for registration

 (1) A person (the applicant) may apply to the Registrar for registration of an existing body corporate as an Aboriginal and Torres Strait Islander corporation under Part 23.

 (2) The application must contain the following information:

 (a) the applicant’s name and address;

 (b) the body’s current name;

 (c) the body’s ACN (if any);

 (d) if the body is a registered body (within the meaning of the Corporations Act)—its ARBN;

 (e) the law under which the body is currently incorporated;

 (f) the name proposed to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (g) 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;

 (h) an indication of whether, for its first financial year, the body is expected to be a small, medium or large corporation;

 (i) if the body is expected to be a large corporation for its first financial year—the address of the proposed registered office;

 (j) if the body is expected to be a small or medium corporation for its first financial year—the address of the proposed document access address;

 (k) the director details of each person who consents in writing to become a director of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (l) if the body is expected to be a small or medium corporation for its first financial year—the name and address of the person who consents in writing to be the contact person;

 (m) if the body is expected to be a large corporation for its first financial year—the name and address of the person who consents in writing to be the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (n) whether, once the body becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the people who are, or have been, its members are to be liable to contribute towards the payment of its debts and liabilities and, if so, the extent of their liabilities;

 (o) such other information that the Registrar specifies in writing in respect of the registration of the body as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (p) 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 30415).

 (3) 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 the body as an Aboriginal and Torres Strait Islander corporation for the purpose of becoming a registered native title body corporate—indicate that purpose.

Director details

 (4) 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) the person’s address;

 (d) the person’s date and place of birth (if known);

 (da) the person’s director identification number, or the fact that the person does not have a director identification number;

 (e) 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.

 (5) A specification by the Registrar under paragraph (2)(o) is not a legislative instrument.

 (6) In this section:

ACN has the same meaning as in the Corporations Act.

ARBN has the same meaning as in the Corporations Act.

225  Matters to accompany application

 (1) The following must accompany an application under section 221:

 (a) evidence of the resolution referred to in section 2917;

 (b) copies of the consents referred to in subsection 221(2);

 (c) a certified copy of a current certificate of the body’s incorporation in its place of origin, or of a document that has a similar effect;

 (d) a certified printed copy of the body’s constitution (if any);

 (e) evidence that the body is not a Chapter 5 body corporate;

 (f) evidence that no application to wind up the body has been made to a court (in Australia or elsewhere) that has not been dealt with;

 (g) evidence that no application to approve a compromise or arrangement between the body and another person has been made to a court (in Australia or elsewhere) that has not been dealt with;

 (h) evidence that under the law of the body’s place of origin:

 (i) the transfer of the body’s incorporation is authorised; and

 (ii) the body has complied with the requirements (if any) of that law for the transfer of its incorporation;

 (i) any other documents that are prescribed.

Note: Under the internal governance rules requirement (see section 2920), 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 261 in respect of the application.

 (2) The evidence lodged in accordance with subsections (1) must be satisfactory proof to the Registrar of the matters referred to in that subsection.

Note: Section 3765 requires documents that are not in English to be translated into English.

2210  Registrar may seek further information

 (1) For the purposes of determining an application made under section 221, 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).

Division 23Application to register amalgamated corporation under Part 23

231  Application for registration

 (1) A person (the applicant) may apply to the Registrar for registration of an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) under Part 23 to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).

 (2) The application must contain the following information:

 (a) the applicant’s name and address;

 (b) the names, and ICNs, of the amalgamating corporations;

 (c) the name proposed to be adopted by the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (d) if the applicant is requesting an exemption for the amalgamated corporation from having to have at least 5 members—a request for the exemption specifying the proposed minimum number of members;

 (e) an indication of whether, for its first financial year, the amalgamated corporation is expected to be a small, medium or large corporation;

 (f) if the amalgamated corporation is expected to be a large corporation for its first financial year—the address of the proposed registered office;

 (g) if the amalgamated corporation is expected to be a small or medium corporation for its first financial year—the address of the proposed document access address;

 (h) the director details of each person who consents in writing to become a director of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (i) if the amalgamated corporation is expected to be a small or medium corporation for its first financial year—the name and address of the person who consents in writing to be the contact person;

 (j) if the amalgamated corporation is expected to be a large corporation for its first financial year—the name and address of the person who consents in writing to be the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (k) whether, once the amalgamated corporation becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the people who are, or have been, its members are to be liable to contribute towards the payment of its debts and liabilities and, if so, the extent of their liabilities;

 (l) such other information that the Registrar specifies in writing in respect of the registration of the amalgamated corporation as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (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 30415).

 (3) The application must also:

 (a) identify the directors of the amalgamated corporation who are to hold office for only one year; and

 (b) if the application seeks registration of the amalgamated corporation for the purpose of becoming a registered native title body corporate—indicate that purpose.

Director details

 (4) 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) the person’s address;

 (d) the person’s date and place of birth (if known);

 (da) the person’s director identification number, or the fact that the person does not have a director identification number;

 (e) 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.

 (5) A specification by the Registrar under paragraph (1)(l) is not a legislative instrument.

235  Matters to accompany application

 (1) The following must accompany an application under section 231:

 (a) evidence that, on registration, the amalgamated corporation will meet the creditor notice requirements referred to in section 2918;

 (b) evidence of the resolutions referred to in section 2919;

 (c) copies of the consents referred to in subsection 231(2);

 (d) evidence that none of the amalgamating corporations is a Chapter 5 body corporate;

 (e) evidence that no application to wind up an amalgamating corporation has been made to a court (in Australia or elsewhere) that has not been dealt with;

 (f) evidence that no application to approve a compromise or arrangement between an amalgamating corporation and another person has been made to a court (in Australia or elsewhere) that has not been dealt with;

 (g) any other documents that are prescribed.

Note: Under the internal governance rules requirement (see section 2920), 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 261 in respect of the application.

 (2) The evidence lodged in accordance with subsections (1) must be satisfactory proof to the Registrar of the matters referred to in that subsection.

Note: Section 3765 requires documents that are not in English to be translated into English.

2310  Registrar may seek further information

 (1) For the purposes of determining an application under section 231, 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 23Decisions on applications

Division 26Registrar to decide application

261  Registrar to decide application

Registrar to decide

 (1) The Registrar must make a decision whether or not to grant an application under section 211, 221 or 231 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 211, 221 or 231 has been lodged for registration of the corporation (but see section 265); and

 (b) if the application is made under section 211—the application is accompanied by the matters set out in section 215 (but see section 265); and

 (ba) if the application is made under section 221—the application is accompanied by the matters set out in section 225 (but see section 265); and

 (bb) if the application is made under section 231—the application is accompanied by the matters set out in section 235 (but see section 265); 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 2610):

 (i) the minimum number of members requirement (see section 291);

 (ii) the Indigeneity requirement (see section 295);

 (iii) the age of members requirement (see section 2910);

 (iv) if the application is made under section 211—the preincorporation requirement (see section 2915);

 (iva) if the application is made under section 221—the pretransfer of registration requirement (see section 2917);

 (ivb) if the application is made under section 231—the creditor notice requirements (see section 2918) and the preamalgamation requirements (see section 2919);

 (v) the internal governance rules requirement (see section 2920);

 (vi) the name requirement (see section 2925); and

 (d) section 2615 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.

Special rules for amalgamation application under section 231

 (3) Subsections (4) and (5) apply in deciding whether to grant an application under section 231 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).

 (4) The Registrar must not grant the application if an objection to the grant of the application has been made under subsection 2918(3) and the objection has not been withdrawn.

 (5) In addition to the matters referred to in subsection (2), the Registrar may have regard to the following matters in deciding whether to grant the application:

 (a) the size and complexity of the operations of the amalgamating corporations;

 (b) whether there are any unresolved disputes:

 (i) internal to the operation of any of the amalgamating corporations; or

 (ii) between any of the amalgamating corporations and other persons; or

 (iii) about whether the amalgamated corporation should replace the amalgamating corporations;

 (c) the extent to which the amalgamating corporations, and the officers of the amalgamating corporations, have complied with this Act and the regulations;

 (d) the nature of any services provided by the amalgamating corporations and the people to whom those services are provided;

 (e) the capacity of the amalgamating corporations, and their officers, to make an application to the Court for orders under Part 5.1 of the Corporations Act (as applied by Division 45 of this Act);

 (f) whether it would be desirable for a court to supervise the process of the amalgamated corporation replacing the amalgamating corporations;

 (g) whether the amalgamating corporations have different member liability arrangements;

 (h) any other matter the Registrar considers relevant.

Note: If the Registrar decides not to grant the application, the amalgamation may be able to be achieved by applying to the Court for orders under Part 5.1 of the Corporations Act (as applied by section 451 of this Act).

265  Registrar may grant application if application is incomplete etc.

  Despite paragraphs 261(2)(a), (b), (ba) and (bb), 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 215, section 225 or 235 is not provided, is incomplete or contains errors.

2610  Registrar may grant application if some basic requirements are not met

Circumstances when Registrar may register corporation

 (1) Despite paragraph 261(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 preincorporation requirement; or

 (d) the pretransfer of registration requirement; or

 (e) the creditor notice requirements; or

 (f) the preamalgamation requirements.

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.

2615  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 29What are the basic requirements for registration?

291  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 775(1).

295  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 7001.

2910  Age of members requirement

  An Aboriginal and Torres Strait Islander corporation meets the age of members requirement if each member of the corporation who is an individual is at least 15 years of age.

2915  Preincorporation requirement

 (1) An Aboriginal and Torres Strait Islander corporation meets the preincorporation 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 2920(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.

2917  Pretransfer of registration requirement

 (1) A body corporate in relation to which an application is made under section 221 meets the pretransfer of registration requirement if:

 (a) the members have by a resolution that has been passed at a meeting by at least 75% of the votes cast by members entitled to vote on the resolution:

 (i) authorised the applicant to apply for the registration of the body as an Aboriginal and Torres Strait Islander corporation; and

 (ii) approved the proposed constitution provided to the Registrar under subsection 2920(2) as the constitution to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23; and

 (iii) if the internal governance rules that would apply to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23 will include one or more replaceable rules—agreed to those replaceable rules so applying; and

 (iv) nominated, as persons who will become directors of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the persons specified in the application as persons who will become directors on registration; and

 (v) if the application indicates that the body is expected to be a small or medium corporation in respect of its first financial year—nominated, as a person who will become the contact person when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the person specified in the application as a person who will become the contact person on registration; and

 (vi) if the application indicates that the body is expected to be a large corporation in respect of its first financial year—nominated, as a person who will become the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the person specified in the application as a person who will become the secretary on registration; and

 (b) the members were given at least 21 days notice of the meeting and the proposed resolution.

 (2) The document evidencing the agreement under subparagraph (1)(a)(iii) must:

 (a) refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23; and

 (b) set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.

2918  Creditor notice requirement

 (1) If an application is made under section 231 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations), the amalgamated corporation meets the creditor notice requirement if:

 (a) the applicant has given the Registrar a notice of intention to make the application; and

 (b) the applicant has, within 14 days after giving the Registrar the notice, published the following in accordance with subsection (2):

 (i) a copy of the notice;

 (ii) a statement informing substantial creditors of the amalgamating corporations that those creditors may, within the objection period, object under subsection (3) to the grant of the application;

 (iii) such other information as is prescribed by the regulations for the purposes of this subparagraph; and

 (c) each of the amalgamating corporations has, during the objection period, taken reasonable steps to bring the following to the attention of persons who are, or who are likely to or who may become, substantial creditors of the corporation:

 (i) the proposed amalgamation;

 (ii) the right that substantial creditors of the corporation have under subsection (3) to object to the grant of the application made under section 231; and

 (d) the application under section 231 is made within 14 days after the end of the objection period.

Note 1: For substantial creditor, see paragraph (5)(a).

Note 2: For objection period, see paragraph (5)(b).

 (2) The material referred to in paragraph (1)(b) must be published:

 (a) in a national newspaper; or

 (b) for each State or Territory in which any of the amalgamating corporations has its registered office (if any) or carries on business or other operations—in a daily newspaper that circulates generally in that State or Territory.

If the material is published in a number of newspapers under paragraph (b), all of the publications must occur on the same day.

 (3) A substantial creditor of any of the amalgamating corporations may object to the grant of the application by:

 (a) lodging with the Registrar a written objection that contains the information prescribed by the regulations for the purposes of this paragraph; and

 (b) giving the applicant a copy of the objection;

within the objection period.

 (4) A substantial creditor of an amalgamating corporation who has lodged an objection under subsection (3) may, by written notice to the Registrar, withdraw the objection.

 (5) For the purposes of this section:

 (a) a person is a substantial creditor of an amalgamating corporation if:

 (i) the amalgamating corporation owes a debt, or debts, to the person; and

 (ii) the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount prescribed by the regulations for the purposes of this subsection; and

 (b) the objection period is the period of 21 days after the day on which the material referred to in paragraph (1)(b) is published in accordance with subsection (2); and

 (c) an amalgamating corporation is taken to owe a debt to a person even if the debt is contingent or prospective.

2919  Preamalgamation requirements

 (1) If an application is made under section 231 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations), the amalgamated corporation meets the preamalgamation requirements if the members of each of the amalgamating corporations have passed a special resolution:

 (a) authorising the applicant to apply for the registration of the amalgamated corporation to replace the amalgamating corporations; and

 (b) approving the proposed constitution provided to the Registrar under subsection 2920(2) as the constitution to be the amalgamated corporation’s constitution when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23; and

 (c) if the internal governance rules that would apply to the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23 will include one or more replaceable rules—agreeing to those replaceable rules so applying; and

 (d) nominating, as persons who will become directors of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the persons specified in the application as persons who will become directors on registration; and

 (e) if the application indicates that the amalgamated corporation is expected to be a small or medium corporation in respect of its first financial year—nominating, as a person who will become a contact person of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the person specified in the application as a person who will become the contact person on registration; and

 (f) if the application indicates that the amalgamated corporation is expected to be a large corporation in respect of its first financial year—nominating, as a person who will become the amalgamated corporation’s secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23, the person specified in the application as a person who will become the 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 amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 23; and

 (b) set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.

2920  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 661.

 (2) In addition, a copy of the corporation’s proposed constitution must be lodged before the time the Registrar makes a decision under section 261 in respect of the application.

2925  Name requirement

  An Aboriginal and Torres Strait Islander corporation meets the name requirement if the corporation complies with the requirements set out in section 851.

Division 32Decisions on applications

321  Successful applications

 (1) If the Registrar grants an application under section 211, 221 or 231 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 371 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.

325  Unsuccessful applications

 (1) If:

 (a) the Registrar does not grant the application; and

 (b) section 2615 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 24Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

Division 37Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

371  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 3710(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 3710(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 3710(3) sets out the criteria for determining whether the corporation is a large corporation for a particular financial year.

375  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.

3710  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) Subject to subsection (3), 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);

 (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);

 (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).

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 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 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 of employees prescribed for the purposes of this paragraph.

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.

3715  When an Aboriginal and Torres Strait Islander corporation controls an entity

  In deciding, for the purposes of section 3710, 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.

3720  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 3710; 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.

3725  Accounting standards

  In consolidating under section 3710:

 (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 25Effects of registration

Division 42Effects of registration

421  Corporation comes into existence on registration

  If an Aboriginal and Torres Strait Islander corporation is registered under Part 23 as a result of an application made under section 211, the 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).

423  Effect of registration of existing body corporate under Part 23

  If a body corporate is registered under Part 23 as an Aboriginal and Torres Strait Islander corporation as a result of an application made under section 221, registration under Part 23 does not:

 (a) create a new legal entity; or

 (b) affect the body’s existing property, rights or obligations (except as against the members of the body in their capacity as members); or

 (c) render defective any legal proceedings by or against the body or its members.

Note: The Aboriginal and Torres Strait Islander corporation remains in existence until it is deregistered (see Chapter 12).

424  Effect of registration of amalgamated corporation under Part 23

 (1) This section applies if an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) is registered under Part 23 as a result of an application made under section 231 to register the amalgamated corporation to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).

 (2) The amalgamated corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.

Note: The amalgamated corporation remains in existence until it is deregistered (see Chapter 12).

 (3) On registration:

 (a) the assets of each of the amalgamating corporations cease to be assets of the amalgamating corporation and become assets of the amalgamated corporation without any conveyance, transfer or assignment and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those assets; and

 (b) the liabilities of each of the amalgamating corporations cease to be liabilities of the amalgamating corporations and become liabilities of the amalgamated corporation and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those liabilities; and

 (c) if any proceedings to which an amalgamating corporation was a party were pending in any court or tribunal immediately before registration—the amalgamated corporation is substituted for the amalgamating corporation as a party to the proceedings; and

 (d) any investigation that was commenced before registration in relation to an amalgamating corporation may be continued after registration as if the investigation were an investigation in relation to the amalgamated corporation; and

 (e) an act or thing done, or omitted to be done, before registration by or in relation to an amalgamating corporation is taken to have been done, or to have been omitted to be done, by or in relation to the amalgamated corporation; and

 (f) a reference in any document to an amalgamating corporation is taken to be a reference to the amalgamated corporation.

Note 1: The Registrar deregisters the amalgamating corporations under subsection 54610(3).

Note 2: Paragraph (3)(e) has the effect, for example, that any regulatory action taken in relation to an amalgamating corporation under Part 103 may be continued as if that action had been taken in relation to the amalgamated corporation.

 (4) Paragraph (3)(e) does not apply to a determination under section 4871 that an amalgamating corporation is to be under special administration.

 (5) To avoid doubt, if an asset of an amalgamating corporation was, immediately before registration, subject to a charge of any kind, the asset becomes the asset of the amalgamated corporation under subsection (3) subject to that charge.

 (6) Subsection (7) applies if:

 (a) any land vests in the amalgamated corporation under this section; and

 (b) there is lodged with a land registration official a certificate that:

 (i) is signed by the Registrar; and

 (ii) identifies the land, whether by reference to a map or otherwise; and

 (iii) states that the land has become vested in the amalgamated corporation under this section.

 (7) The land registration official may:

 (a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

 (b) deal with, and give effect to, the certificate.

 (8) Subsection (9) applies if:

 (a) any asset other than land vests in the amalgamated corporation under this section; and

 (b) there is lodged with an assets official a certificate that:

 (i) is signed by the Registrar; and

 (ii) identifies the asset; and

 (iii) states that the asset has become vested in the amalgamated corporation under this section.

 (9) The assets official may:

 (a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

 (b) make such entries in the register as are necessary having regard to the effect of this section.

 (10) No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

 (11) The Registrar may certify in writing:

 (a) that a specified matter is an exempt matter; or

 (b) that a specified thing was connected with a specified exempt matter.

 (12) In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subsection (11) is prima facie evidence of the matters stated in the certificate.

 (13) For the purposes of this section, an exempt matter is:

 (a) the vesting of an asset or liability under this section; or

 (b) the operation of this section in any other respect.

 (14) In this section:

asset means:

 (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

 (b) any right, power, privilege or immunity, whether actual, contingent or prospective.

assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

425  Corporation’s name

  An Aboriginal and Torres Strait Islander corporation’s name on registration is the name specified in the certificate of registration.

4210  Members, directors, corporation secretary and contact person of corporation

Persons become members on registration

 (1) A person becomes a member of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if:

 (a) the corporation was registered as a result of an application made under section 211 and the person is specified in the application with the person’s consent as a proposed member of the corporation; or

 (b) the corporation was registered as a result of an application made under section 221 for registration of a body corporate as an Aboriginal and Torres Strait Islander corporation under Part 23 and the person is a member of the body corporate immediately before registration of the corporation; or

 (c) the corporation was registered as a result of an application made under section 231 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) under Part 23 to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations) and the person is a member of any of the amalgamating corporations immediately before the registration of the amalgamated corporation.

Note: A member’s name must be entered in the register of members (see section 1805).

Persons become directors etc. on registration

 (1A) A person becomes a director, corporation secretary or contact person of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if the person is specified in the application under section 211, 221 or 231 with his or her consent as a proposed director, corporation secretary or contact person of the corporation.

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.

4215  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.

4220  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.

4225  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 991 and 995).

Note 2: For abbreviations that can be used on a seal, see section 8510.

 (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.

4230  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.

4235  Body corporate registered as Aboriginal and Torres Strait Islander corporation (liability of members on winding up)

 (1) This section applies if:

 (a) a body corporate is registered as an Aboriginal and Torres Strait Islander corporation under Part 23 as a result of an application made under section 221; and

 (b) a person stopped being a member of a body corporate before it was registered as an Aboriginal and Torres Strait Islander corporation under Part 23.

 (2) The person is to be treated as a past member of the Aboriginal and Torres Strait Islander corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 52635 of this Act) to a winding up of the Aboriginal and Torres Strait Islander corporation.

 (3) However, the person’s liability to contribute to the Aboriginal and Torres Strait Islander corporation’s property is further limited by this section to an amount sufficient for the following:

 (a) payment of debts and liabilities contracted by the body corporate before the day on which it was registered as an Aboriginal and Torres Strait Islander corporation under Part 23;

 (b) payment of the costs, charges and expenses of winding up the Aboriginal and Torres Strait Islander corporation, so far as those costs, charges and expenses relate to those debts and liabilities;

 (c) the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.

4240  Body corporate registered as Aboriginal and Torres Strait Islander corporation (modification by regulations)

 (1) The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 23 as a result of an application made under section 221.

 (2) Regulations made for the purposes of subsection (1) must not:

 (a) increase, or have the effect of increasing, the maximum penalty for any offence; or

 (b) widen, or have the effect of widening, the scope of any offence.

4245  Registration of amalgamated corporation (liability of members on winding up)

 (1) This section applies if:

 (a) an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) is registered under Part 23 as a result of an application made under section 231 to register the amalgamated corporation to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations); and

 (b) a person stopped being a member of an amalgamating corporation before the registration of the amalgamated corporation.

 (2) The person is to be treated as a past member of the amalgamated corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 52635 of this Act) to a winding up of the amalgamated corporation.

 (3) However, the person’s liability to contribute to the amalgamated corporation’s property is further limited by this section to an amount sufficient for the following:

 (a) payment of debts and liabilities contracted by the amalgamating corporation before the registration of the amalgamated corporation;

 (b) payment of the costs, charges and expenses of winding up the amalgamated corporation, so far as those costs, charges and expenses relate to those debts and liabilities;

 (c) the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.

4250  Registration of amalgamated corporation (modification by regulations)

 (1) The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 23 as a result of an application made under section 231.

 (2) Regulations made for the purposes of subsection (1) must not:

 (a) increase, or have the effect of increasing, the maximum penalty for any offence; or

 (b) widen, or have the effect of widening, the scope of any offence.

Part 26Arrangements and reconstructions

Division 45Application of Corporations Act arrangements and reconstructions provisions

451  Applying Corporations Act arrangements and reconstructions provisions to Aboriginal and Torres Strait Islander corporations

 (1) The Corporations Act arrangements and reconstructions provisions apply to an Aboriginal and Torres Strait Islander corporation as if the following substitutions were made:

 

Substitutions to be made

Item

For a reference to ...

substitute a reference to ...

1

a Part 5.1 body

an Aboriginal and Torres Strait Islander corporation

2

a body

an Aboriginal and Torres Strait Islander corporation

3

a company

an Aboriginal and Torres Strait Islander corporation

4

ASIC

the Registrar

5

registered office

registered office or document access address

Note: If a number of Aboriginal and Torres Strait Islander corporations wish to amalgamate, it may be possible, in some circumstances, for them to proceed with the amalgamation by means of an application to the Registrar under Division 23 (as an alternative to applying to a court for an order under the applied Corporations Act arrangements and reconstructions provisions).

 (2) The Corporations Act arrangements and reconstructions provisions apply to an Aboriginal and Torres Strait Islander corporation:

 (a) only to the extent to which they are capable of applying to an Aboriginal and Torres Strait Islander corporation; and

 (b) with the modifications specified in the regulations.

 (3) Regulations made for the purposes of paragraph (2)(b) must not:

 (a) increase, or have the effect of increasing, the maximum penalty for any offence; or

 (b) widen, or have the effect of widening, the scope of any offence.

 (4) In this Act:

Corporations Act arrangements and reconstructions provisions means:

 (a) Part 5.1 of the Corporations Act (other than paragraph 411(17)(a), subsection 412(3) and (5) and section 414); and

 (b) section 425, subsections 427(2) and (4), sections 428, 432 and 434 of, and Subdivision B of Division 90 of Schedule 2 to, that Act to the extent to which they are applied by subsection 411(9) of that Act; and

 (c) the other provisions of that Act (including Parts 1.2, 5.8, 5.9 and 9.4 and Schedule 3 but not including Parts 1.1, 1.1A and 9.4A) to the extent to which they relate to the operation of Part 5.1 of that Act and the provisions referred to in paragraph (b) of this definition; and

 (d) the regulations and rules made under that Act for the purposes of Part 5.1 of that Act and the provisions referred to in paragraphs (b) and (c) of this definition.

Chapter 3Basic features of an Aboriginal and Torres Strait Islander corporation

Part 31Introduction

Division 52Introduction

521  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 32Rules dealing with the internal governance of corporations

Division 57Introduction

571  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 631).

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.

575  List of internal governance rules

  The following table sets out the main provisions of this Act that deal with the internal governance of Aboriginal and Torres Strait Islander corporations. The table indicates those rules that operate as replaceable rules and Division 60 tells you how replaceable rules operate.

 

Item

Subject of provision

Provision



1A

Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation
Resolution of internal disputes



subsection 661(3A)

1B

Resolution of disputes with persons who are or who claim to be common law holders

subsection 661(3B)


1C

Chapter 4—Members and observers

Eligibility requirements for membership of registered native title body corporate

 

section 14125

1

How does a person become a member?

section 1441

2

Application to corporation

section 1445

subsection (2) is a replaceable rule

3

Determination of applications for membership

section 14410

subsection (7) is a replaceable rule

4

Fees for membership and being an observer

section 14415

5

Obligation to contribute on winding up

section 1471

6

Corporation may impose other membership obligations

section 1475

7

Liability of corporation members

section 14710

8

Cessation of membership

section 1501

10

Resignation

section 15010

subsection (2) is a replaceable rule

11

General

section 15015

12

Member of corporation that is not a registered native title body corporate not eligible for membership etc.

section 15020

this section is a replaceable rule

12A

Member of registered native title body corporate not eligible for membership etc.

section 15022

13

Member not contactable

section 15025

14

Member is not an Aboriginal and Torres Strait Islander person

section 15030

15

Member misbehaves

section 15035

16

Different classes of members

section 1531

17

Observers

section 1585

subsection (2) is a replaceable rule

18

What protections apply to variations or cancellations of class rights?

Division 172

19

Corporation or directors may allow member to inspect books

section 17515

this section is a replaceable rule


20

Chapter 5—Meetings

Director may call meetings


section 2011

this section is a replaceable rule

21

Request by members for directors to call general meetings

section 2015

22

When must directors comply with members’ request?

section 20110

23

When must a requested meeting be held?

section 20115

24

Amount of notice for general meeting

section 20120

25

Notice of general meeting to members, officers and observers

section 20125

subsections (2), (5) and (6) are replaceable rules

26

Auditor entitled to notice and other communications

section 20130

27

Contents of notice of general meeting

section 20135

28

Members’ resolutions

section 20140

29

Notice of members’ resolutions

section 20145

30

Members’ statements to be distributed

section 20150

31

Purpose

section 20155

32

Time and place for general meeting

section 20160

33

Technology

section 20165

34

Quorum

section 20170

subsections (1), (2), (5) and (6) are replaceable rules

35

Chairing general meeting

section 20175

this section is a replaceable rule

36

Auditor’s right to be heard at general meetings

section 20180

37

Adjourned meetings

section 20185

subsection (2) is a replaceable rule

38

Who may appoint a proxy

section 20190

this section is a replaceable rule

39

Rights of proxies

section 20195

40

Appointing a proxy

section 201100

41

Proxy documents

section 201105

42

Body corporate representative

section 201110

43

How many votes a member has

section 201115

this section is a replaceable rule

44

Objections to right to vote

section 201120

this section is a replaceable rule

45

How voting is carried out

section 201125

this section is a replaceable rule

46

Matters on which a poll may be demanded

section 201130

47

When a poll is effectively demanded

section 201135

48

When and how polls must be taken

section 201140

this section is a replaceable rule

49

Corporation must hold first general meeting within 3 months of registration

section 201145

50

Corporation must hold AGM

section 201150

51

Extension of time for holding AGM

section 201155

52

Business of AGM

section 201160

53

Questions and comments by members on corporation management at AGM

section 201165

54

Questions by members of auditors at AGM

section 201170

55

Circulating resolutions

section 2041

56

Resolutions of 1 member corporations

section 2045

57

Constitution to provide for meetings

section 2121

58

Calling directors’ meetings

section 2125

this section is a replaceable rule

59

Use of technology

section 21210

60

Chairing directors’ meetings

section 21215

this section is a replaceable rule

61

Quorum at directors’ meetings

section 21220

62

Passing of directors’ resolutions

section 21225

this section is a replaceable rule

63

Circulating resolutions of corporation with more than 1 director

section 2151

this section is a replaceable rule

64

Resolutions and declarations of 1 director corporation

section 2155

65

Minutes

section 2205

66

Members’ access to minutes

section 22010


67

Chapter 6—Officers

Minimum number of directors


section 2431

68

Maximum number of directors

section 2435

69

Eligibility for appointment as a director

section 2461

70

Majority of director requirements

section 2465

71

Consent to act as director

section 24610

72

Corporation may appoint a director

section 24615

this section is a replaceable rule

73

Directors may appoint other directors to make up a quorum

section 24620

this section is a replaceable rule

74

Term of appointment

section 24625

subsections (1) and (3) are replaceable rules

75

Alternate directors

section 24630

this section is a replaceable rule

76

How does a person cease to be a director?

section 2491

77

Director may resign

section 2495

subsection (2) is a replaceable rule

78

Removal by members

section 24910

79

Removal by other directors

section 24915

80

Remuneration

section 2521

81

How a secretary or contact person is appointed

section 25720

82

Terms and conditions of office for secretaries

section 25745

this section is a replaceable rule

 

83

Terms and conditions of contact person’s appointment

section 25750

this section is a replaceable rule

84

Duties in relation to disclosure of, and voting on matters involving, material personal interests

Division 268

85

Powers of directors

section 2741

this section is a replaceable rule

86

Negotiable instruments

section 2745

this section is a replaceable rule

87

Delegation

section 27410

88

Right of access to corporation books

section 27415

89

Member approval needed for related party benefit

Part 66

Division 60What are the replaceable rules and when do they apply to a corporation?

601  Replaceable rules

Which are the replaceable rules?

 (1) A section or subsection whose heading contains the words “replaceable rule—see section 601” 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 605.

605  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 661).

6010  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.

6015  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).

6020  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.

Division 63What are the internal governance rules of a corporation?

631  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 rules (if any) in the corporation’s constitution providing for the resolution of disputes between the corporation and persons who are or who claim to be common law holders of native title;

 (d) the other rules dealing with the internal governance of the corporation that are in the corporation’s constitution.

Division 66What are the internal governance rules requirements?

661  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.

 (3A) The corporation’s constitution must provide for the resolution of disputes internal to the operation of the corporation.

 (3B) If:

 (a) the application for registration of the corporation seeks registration for the purpose of becoming a registered native title body corporate; or

 (b) the corporation is a registered native title body corporate;

the corporation’s constitution must provide for the resolution of disputes between the corporation and a person who is or who claims to be a common law holder of native title (whether or not the person is a member of the corporation) in relation to:

 (c) whether or not the person is a common law holder of native title; or

 (d) the corporation’s performance of its functions under the Native Title legislation.

 (4) The internal governance rules must cover the matters that are provided for in the replaceable rules (see section 665).

 (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) the application for registration of the corporation seeks registration 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 2920).

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 6930).

665  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 69Constitutions and amendment and replacement of constitutions

Subdivision 69AConstitution on registration

691  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 2915).

 (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 69BConstitutional changes after registration

695  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 6915);

 (c) the corporation must lodge certain documents (see section 6920);

 (d) the Registrar must make certain decisions in respect of the constitutional change and, if appropriate, must register the change (see section 6930).

Note: The constitutional change takes effect when it is registered (see section 6940).

Court may change a constitution

 (2) The court may also change an Aboriginal and Torres Strait Islander corporation’s constitution (see section 1665).

Note: The constitutional change takes effect as provided for in paragraph 6940(b).

Registrar may change a constitution

 (3) The Registrar may also change an Aboriginal and Torres Strait Islander corporation’s constitution (see section 6935).

Note 1: If the Registrar changes a constitution under section 6935, the steps in subsection (1) of this section do not apply.

Note 2: The constitutional change takes effect when it is registered (see section 6940).

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 4995).

Note 1: If the special administrator changes a constitution under section 4995, 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 6925 and the Registrar must take the steps in section 6930).

Note 2: The constitutional change takes effect when it is registered (see section 6940).

6910  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.

6915  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 6940 deals with when the constitutional change takes effect.

6920  Corporation to lodge copy of constitutional changes

 (1) If no requirement of a kind mentioned in section 6915 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 (5)); 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: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of subsection (1) or (2). See sections 26540 and 38610.

6925  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 4995, the special administrator must lodge a copy of the change with the Registrar.

6930  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 6920 or 6925.

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 6935 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.

6935  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 661 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 695(1)(a) (special resolution), section 6915 (satisfying extra requirements in constitution), section 6920 (corporation to lodge copy of changes) or section 6930 (Registrar to determine if constitutional change should be registered).

6940  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 1665:

 (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 72Other matters concerning constitutions etc.

721  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 3225, an Aboriginal and Torres Strait Islander corporation must keep an uptodate copy of its constitution.

 (2) A direction made under subsection (1) is not a legislative instrument.

725  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 3761.

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 3761.

 (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.

7210  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 33Minimum number of members of Aboriginal and Torres Strait Islander corporations

Division 77Minimum number of members of Aboriginal and Torres Strait Islander corporations

771  What this Part is about

This Part deals with the minimum number of members that an Aboriginal and Torres Strait Islander corporation must have.

775  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 211, 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 number determined;

the corporation may request the Registrar in writing to:

 (c) exempt the corporation from having the number previously determined; and

 (d) determine the corporation to have the lesser minimum number of members specified in the application.

Request after registration if no determination under subsection (2) is in force

 (4) If:

 (a) an Aboriginal and Torres Strait Islander corporation is required to have at least 5 members; and

 (b) after registration of the corporation, the corporation wants to have fewer than 5 members;

the corporation may request the Registrar in writing to:

 (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.

7710  Registrar may exempt if appropriate and reasonable to do so

  The Registrar may grant an exemption on a request under subsection 775(2), (3) or (4) and allow a lesser number if the Registrar is satisfied that it is appropriate and reasonable in the circumstances to do so.

Note: For example, the Registrar may grant an exemption if the corporation was formed as a result of a court order.

7715  Registrar may determine a different number to number requested

  In determining a lesser minimum number of members on a request under subsection 775(2), (3) or (4), the Registrar may determine a number that is higher or lower than the number requested (so long as the number is less than 5).

7720  Earlier determination taken to be revoked

  If the Registrar grants an exemption on a request under subsection 775(3), the determination referred to in paragraph 775(3)(a) is taken to be revoked.

7725  Notice to be given

 (1) If the Registrar grants an exemption under section 7710, the Registrar must notify the applicant or corporation, as the case may be, in writing of the exemption and the minimum number of members that the corporation is instead required to have.

 (2) If the Registrar does not grant the exemption, the Registrar must notify the applicant or corporation, as the case may be, in writing that the exemption has not been granted.

Part 34Names

Division 82Introduction

821  What this Part is about

This Part deals with the names requirement (Division 85) and how a name is changed (Division 88).

Division 85What names may a corporation have?

851  Corporation’s name requirements

 (1) The requirements concerning an Aboriginal and Torres Strait Islander corporation’s name are set out in the following subsections.

 (2) The corporation may have as its name:

 (a) a name that is available (see section 855); or

 (b) the expression “Indigenous Corporation Number” followed by the corporation’s ICN.

 (3) The corporation must have as part of its name one of the following sets of words:

 (a) “Aboriginal corporation”;

 (b) “Torres Strait Islander corporation”;

 (c) “Aboriginal and Torres Strait Islander corporation”;

 (d) “Torres Strait Islander and Aboriginal corporation”;

 (e) “Indigenous corporation”.

 (4) If the corporation is a registered native title body corporate, then the corporation must also have as part of its name the words “registered native title body corporate”.

 (5) If abbreviations are used in its name, the corporation must use only the abbreviations that are acceptable (see section 8510).

 (6) If the corporation is not a registered native title body corporate the corporation must not:

 (a) have the term “registered native title body corporate” as part of its name; or

 (b) include the abbreviation “RNTBC” in its name.

 (7) The requirements must be met by an Aboriginal and Torres Strait Islander corporation at all times after registration.

Note: The requirements must be complied with on registration of an Aboriginal and Torres Strait Islander corporation (see section 2925).

855  Available names

Name is available unless identical or unacceptable

 (1) A name is available unless the name is:

 (a) identical (under rules set out in the regulations) to a name that is:

 (i) used in an application for registration under this Act; or

 (ii) registered under this Act for another Aboriginal and Torres Strait Islander corporation; or

 (iii) registered under the Corporations Act; or

 (iv) reserved for a company under section 152 of the Corporations Act; or

 (b) identical (under rules set out in the regulations) to a name that is held or registered on the Business Names Register in respect of another individual or body who is not the person applying to have the name; or

 (c) unacceptable for registration under the regulations.

Registrar may consent to a name being available

 (2) The Registrar may consent in writing to a name being available to a corporation even if the name is:

 (a) identical to a name:

 (i) that is used in another current application for registration under this Act; or

 (ii) registered under this Act for another Aboriginal and Torres Strait Islander corporation; or

 (iii) registered under the Corporations Act; or

 (iv) reserved for a company under section 152 of the Corporations Act; or

 (v) that is held or registered on Business Names Register; or

 (b) unacceptable for registration under the regulations.

 (3) The Registrar’s consent may be given subject to conditions.

Note: If the corporation breaches a condition, the Registrar may direct it to change its name under section 885.

 (4) The regulations may specify that a particular unacceptable name is available if:

 (a) a specified public authority, or an instrumentality or agency of the Crown in right of the Commonwealth, a State or an internal Territory has consented to the corporation using or assuming the name; or

 (b) the corporation is otherwise permitted to use or assume the name by or under:

 (i) an Act of the Commonwealth, a State or an internal Territory; or

 (ii) a specified provision of an Act of the Commonwealth, a State or an internal Territory.

The consent of the authority, instrumentality or agency may be given subject to conditions.

Note: If the consent is withdrawn, the corporation ceases to be permitted or the corporation breaches a condition, the Registrar may direct it to change its name under section 885.

8510  Acceptable abbreviations

 (1) The abbreviations set out in the following table may be used:

 (a) instead of words that this Act requires to be part of an Aboriginal and Torres Strait Islander corporation’s name, or to be included in a document or on an Aboriginal and Torres Strait Islander corporation’s common seal; and

 (b) instead of words that are part of an Aboriginal and Torres Strait Islander corporation’s name; and

 (c) with or without full stops.

 

Acceptable abbreviations

 

 

Word

Abbreviation

1

Australian

Aust

2

Number

No

3

and

&

4

Indigenous Corporation Number

ICN

5

Australian Business Number

ABN

6

registered native title body corporate

RNTBC

 (2) If an Aboriginal and Torres Strait Islander corporation’s name includes any of these abbreviations, the word corresponding to the abbreviation may be used instead.

8515  Using a name and ICN on documents

 (1) An Aboriginal and Torres Strait Islander corporation must set out its name on all its public documents and negotiable instruments.

 (2) Subject to sections 8520 and 8525, if the corporation’s ICN is not used in its name, the corporation must also set out with its name, or with one of the references to its name, the expression “Indigenous Corporation Number” followed by the corporation’s ICN.

 (3) If the corporation’s name appears on 2 or more pages of the document or instrument, this must be done on the first of those pages.

Note 1: If an Aboriginal and Torres Strait Islander corporation has a common seal, its name and ICN must be set out on the seal (see section 4225).

Note 2: An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must display its name at its registered office and at places at which the corporation carries on business (see section 11215).

Note 3: Section 8510 provides that “ICN” is an acceptable abbreviation of “Indigenous Corporation Number”.

 (4) An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1), (2) or (3).

Penalty: 10 penalty units.

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

8520  Exception to requirement to have ICN on receipts

  An Aboriginal and Torres Strait Islander corporation does not have to set out the expression “Indigenous Corporation Number” followed by its ICN on a receipt (for example, a cash register receipt) that sets out information recorded in the machine that produced the receipt.

8525  Regulations may exempt from requirement to set out information on documents

  The regulations may exempt an Aboriginal and Torres Strait Islander corporation, or a specified class of Aboriginal and Torres Strait Islander corporation, from the requirement in subsection 8515(2) to set out information on its public documents and negotiable instruments.

Division 88How is a corporation’s name changed?

881  Corporation changing its name

 (1) If an Aboriginal and Torres Strait Islander corporation wants to change its name, it must:

 (a) pass a special resolution adopting a new name; and

 (b) lodge an application in writing with the Registrar.

 (2) The corporation must lodge:

 (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;

with the Registrar within 28 days after the resolution is passed.

Penalty: 5 penalty units.

Note: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of this section. See sections 26540 and 38610.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (4) If the proposed name complies with the requirements in section 851, the Registrar must change the corporation’s name by altering the details of the corporation’s registration to reflect the change. The change of name takes effect when the Registrar alters the details of the corporation’s registration.

885  Registrar’s power to direct corporation to change its name

 (1) The Registrar may direct an Aboriginal and Torres Strait Islander corporation in writing to change its name within 2 months if:

 (a) the name should not have been registered; or

 (b) the corporation has breached a condition under subsection 855(3) on the availability of the name; or

 (c) a consent given under subsection 855(4) to use or assume the name has been withdrawn; or

 (d) the corporation has breached a condition on a consent given under subsection 855(4); or

 (e) the corporation ceases to be permitted to use or assume the name (as referred to in paragraph 855(4)(b)).

 (2) The corporation must comply with the direction within 2 months after being given it by doing everything necessary to change its name under section 881.

Penalty: 50 penalty units or 12 months imprisonment, or both.

 (3) If the corporation does not comply with subsection (2), the Registrar may change the corporation’s name to its ICN and any other words that section 851 requires, by altering the details of the corporation’s registration to reflect the change.

 (4) A change of name under subsection (3) takes effect when the Registrar alters the details of the corporation’s registration.

 (5) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (6) A direction under subsection (1) is not a legislative instrument.

8810  If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate

Notice required

 (1) If an Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate, the corporation must, within 28 days after becoming registered, notify the Registrar in writing accordingly.

Registrar to change registration

 (2) If:

 (a) the Registrar is notified under subsection (1) that the corporation has become a registered native title body corporate; or

 (b) the Registrar otherwise becomes aware of that fact;

the Registrar must change the corporation’s name by altering the details of the corporation’s registration to include the words “registered native title body corporate” in the corporation’s name.

When name change takes effect

 (3) A change of name under subsection (2) takes effect when the Registrar alters the details of the corporation’s registration.

8815  If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate

Notice required

 (1) If an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate (RNTBC) ceases to be a RNTBC, the corporation must, within 28 days after ceasing to be a RNTBC, notify the Registrar in writing accordingly.

Registrar to change registration

 (2) If:

 (a) the Registrar is notified under subsection (1) that the corporation has ceased to be a RNTBC; or

 (b) the Registrar otherwise becomes aware of that fact;

the Registrar must change the corporation’s name by altering the details of the corporation’s registration to delete the words “registered native title body corporate” from the corporation’s name.

When name change takes effect

 (3) A change of name under subsection (2) takes effect when the Registrar alters the details of the corporation’s registration.

8820  Registrar must issue new certificate if name changes

 (1) If the Registrar changes an Aboriginal and Torres Strait Islander corporation’s name, he or she must give to the corporation a new certificate of registration. The corporation’s new name is the name specified in the certificate of registration issued under this section.

Note 1: An Aboriginal and Torres Strait Islander corporation’s name may be changed under section 881, 885, 8810 or 8815.

Note 2: For the evidentiary value of a certificate of registration, see subsection 4245(2).

 (2) A certificate under subsection (1) is not a legislative instrument.

8825  Effect of name change

 (1) The changing of an Aboriginal and Torres Strait Islander corporation’s name does not:

 (a) create a new legal entity; or

 (b) affect the corporation’s existing property, rights or obligations; or

 (c) render defective any legal proceedings by or against the corporation.

 (2) Any legal proceedings that could have been continued or begun by or against the corporation in its former name may be continued or begun by or against it in its new name.

Part 35Corporation powers and how they are exercised

Division 93Introduction

931  What this Part is about

This Part deals with the legal capacity and powers of Aboriginal and Torres Strait Islander corporations.

Division 96What are a corporation’s powers?

961  Legal capacity and powers

 (1) An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia.

 (2) An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation’s constitution permits, distribute any of the corporation’s property among the members, in kind or otherwise.

 (3) An Aboriginal and Torres Strait Islander corporation’s legal capacity to do something is not affected by the fact that the corporation’s interests are not, or would not be, served by doing it.

 (4) For the avoidance of doubt, this section does not:

 (a) authorise an Aboriginal and Torres Strait Islander corporation to do an act that is prohibited by a law of a State or Territory; or

 (b) give an Aboriginal and Torres Strait Islander corporation a right that a law of a State or Territory denies to the corporation.

Division 99How are a corporation’s powers exercised?

991  Agent exercising a corporation’s power to make contracts etc.

 (1) An Aboriginal and Torres Strait Islander corporation’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the corporation’s express or implied authority and on behalf of the corporation. The power may be exercised without using a common seal.

 (2) This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

995  Execution of documents (including deeds) by the corporation itself

 (1) An Aboriginal and Torres Strait Islander corporation may execute a document without using a common seal if the document is signed by:

 (a) 2 directors of the corporation; or

 (b) a director and a corporation secretary (if any) of the corporation; or

 (c) if the corporation has only 1 director—that director.

Note: If an Aboriginal and Torres Strait Islander corporation executes a document in this way, people will be able to rely on the assumptions in subsection 1045(6) for dealings in relation to the corporation.

 (2) An Aboriginal and Torres Strait Islander corporation with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:

 (a) 2 directors of the corporation; or

 (b) a director and a corporation secretary of the corporation; or

 (c) for an Aboriginal and Torres Strait Islander corporation that has only 1 director—that director.

Note: If an Aboriginal and Torres Strait Islander corporation executes a document in this way, people will be able to rely on the assumptions in subsection 1045(7) for dealings in relation to the corporation.

 (3) An Aboriginal and Torres Strait Islander corporation may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

 (4) This section does not limit the ways in which an Aboriginal and Torres Strait Islander corporation may execute a document (including a deed).

Part 36Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

Division 104Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

1041  Entitlement to make assumptions

 (1) A person is entitled to make the assumptions in section 1045 in relation to dealings with an Aboriginal and Torres Strait Islander corporation. The corporation is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

 (2) A person is entitled to make the assumptions in section 1045 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from an Aboriginal and Torres Strait Islander corporation. The corporation and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

 (3) The assumptions may be made even if an officer or agent of the corporation acts fraudulently, or forges a document, in connection with the dealings.

 (4) A person is not entitled to make an assumption in section 1045 if at the time of the dealings the person knew or suspected that the assumption was incorrect.

1045  Assumptions that can be made under section 1041

Constitution and replaceable rules complied with

 (1) A person may assume that the corporation’s constitution and any provisions of this Act that apply to the corporation as replaceable rules, have been complied with.

Director or corporation secretary

 (2) A person may assume that anyone who appears, from information provided by the corporation that is available to the public from the Registrar, to be a director or a corporation secretary of the corporation:

 (a) has been duly appointed; and

 (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or corporation secretary of a similar Aboriginal and Torres Strait Islander corporation.

Contact person

 (3) A person may assume that anyone who appears, from information that is available to the public from the Registrar to be the contact person of the corporation, is the contact person.

Officer or agent

 (4) A person may assume that anyone who is held out by the corporation to be an officer or agent of the corporation:

 (a) has been duly appointed; and

 (b) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar Aboriginal and Torres Strait Islander corporation.

Proper performance of duties

 (5) A person may assume that the officers and agents of the corporation properly perform their duties to the corporation.

Document duly executed without seal

 (6) A person may assume that a document has been duly executed by the corporation if the document appears to have been signed in accordance with subsection 995(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to his or her signature that he or she is the only director of the corporation is the only director of the corporation.

Document duly executed with seal

 (7) A person may assume that a document has been duly executed by the corporation if:

 (a) the corporation’s common seal appears to have been fixed to the document in accordance with subsection 995(2); and

 (b) the fixing of the common seal appears to have been witnessed in accordance with that subsection.

For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to his or her signature that he or she is the only director of the corporation is the only director of the corporation.

Officer or agent with authority to warrant that document is genuine or true copy

 (8) A person may assume that an officer or agent of the corporation who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

 (9) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

10410  Information available to the public from Registrar does not constitute constructive notice

  A person is not taken to have information about an Aboriginal and Torres Strait Islander corporation merely because the information is available to the public from the Registrar.

Part 37Registered office or document access address

Division 109Introduction

1091  What this Part is about

This Part deals with:

 (a) the registered office of an Aboriginal and Torres Strait Islander corporation that is registered as a large corporation; and

 (b) the document access address of an Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation.

Division 112Registered office

1121  General

Application of Division

 (1) This Division applies to an Aboriginal and Torres Strait Islander corporation if it is registered as a large corporation.

Small and medium corporations not to have registered office

 (2) An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must not have a registered office.

1125  Corporation to have registered office

 (1) An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must have a registered office in Australia.

Note: A document may be served on a large corporation by leaving it at, or posting it to, the corporation’s registered office (see section 1201).

 (2) If the corporation has one or more places of business in Australia, one of those places must be its registered office.

 (3) The corporation must lodge notice of a change of address of its registered office with the Registrar not later than 28 days after the date on which the change occurs.

Note: If the corporation is not to be the occupier of premises at the address of its new registered office, the notice must state that the occupier has consented to the address being specified in the notice and has not withdrawn that consent (see section 11220).

 (4) A notice of change of address takes effect when the changed address is included on the Register of Aboriginal and Torres Strait Islander Corporations.

 (5) The corporation commits an offence if the corporation does not have a registered office in Australia.

Penalty: 5 penalty units.

 (6) The corporation commits an offence if:

 (a) the corporation has one or more places of business in Australia; and

 (b) one of those places of business is not the corporation’s registered office.

Penalty: 5 penalty units.

 (7) The corporation commits an offence if:

 (a) the corporation’s registered office address changes; and

 (b) the corporation does not lodge the notice required by subsection (3) within 28 days after the change.

Penalty: 5 penalty units.

 (8) An offence against subsection (5) or (6) or paragraph (7)(b) is an offence of strict liability.

Note 1: For strict liability, see section 6.1 of the Criminal Code.

Note 2: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of subsection (5), (6) or (7). See sections 26540 and 38610.

11210  Registrar may change address of registered office to a director’s address

 (1) If the corporation does not occupy the premises at the address of its registered office, the corporation must be able to show the Registrar the occupier’s written consent to the corporation’s use of those premises as its registered office.

Note: The Registrar can require the corporation to produce the consent (see section 11220).

 (2) The corporation commits an offence if it contravenes subsection (1).

Penalty: 5 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (4) If the Registrar becomes aware that the occupier of those premises:

 (a) has not consented to the use of the premises as the address of the corporation’s registered office; or

 (b) has withdrawn the consent;

the Registrar may:

 (c) give written notice to a director of the corporation who resides in Australia that the Registrar intends to change the address of the corporation’s registered office to the director’s address; and

 (d) if the Registrar is not notified of the address of the corporation’s proposed new registered office under section 1125 within 14 days after the notice under that section is sent—change the address of the corporation’s registered office to the address of that director.

 (5) A notice under paragraph (4)(c) is not a legislative instrument.

11215  Corporation’s name must be displayed

 (1) The corporation must display its name and ICN prominently at its registered office. The corporation must also display its name and ICN at every place at which the corporation carries on business if that place is open to the public.

 (2) The corporation commits an offence if the corporation fails to prominently display its name and ICN:

 (a) at its registered office; or

 (b) at a place at which the corporation carries on business that is open to the public.

Penalty: 10 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

11220  Address of registered office etc.

 (1) If a provision of this Act requires a notice to be lodged of, or information in an application to specify:

 (a) the address of an office, or of a proposed office, of an Aboriginal and Torres Strait Islander corporation or other person; or

 (b) a change in the situation and address of an office of an Aboriginal and Torres Strait Islander corporation or other person;

the notice or information must specify the matters set out in subsections (2) and (3).

 (2) The notice or information must specify the full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building in which the office is situated.

 (3) If:

 (a) the notice or application relates to the address or situation of an office of an Aboriginal and Torres Strait Islander corporation; and

 (b) the address specified in accordance with paragraph (1)(a) is the address of premises that the corporation will not occupy;

the notice or information must include a written statement to the effect that the person who occupies those premises:

 (c) has consented in writing to the address being specified in the notice or application; and

 (d) has not withdrawn that consent.

 (4) The Registrar may require a person who has lodged a notice or application that includes a statement under subsection (3) to produce to the Registrar the consent referred to in the statement.

 (5) A requirement under subsection (4) is not a legislative instrument.

Division 115Document access address

1151  Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations

  This Division applies to an Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation.

1155  Corporation to have document access address

 (1) The corporation must have a document access address in Australia.

Note 1: Certain documents must be kept at this address and must be available for inspection at this address.

Note 2: The document access address is not an address at which documents can be served on the corporation. See section 1201 for the addresses at which documents can be served on the corporation.

 (2) The corporation must lodge notice of a change of address of its document access address with the Registrar not later than 28 days after the date on which the change occurs.

Note: If the corporation is not to be the occupier of premises at the address of its document access address, the notice must state that the occupier has consented to the address being specified in the notice and has not withdrawn that consent (see section 11520).

 (3) A notice of change of address takes effect from the later of:

 (a) the seventh day after the notice was lodged; or

 (b) a later day specified in the notice as the date from which the change is to take effect.

 (4) The corporation commits an offence if the corporation does not have a document access address in Australia.

Penalty: 5 penalty units.

 (5) The corporation commits an offence if:

 (a) the corporation’s document access address changes; and

 (b) the corporation does not lodge the notice required by subsection (2) within 28 days after the change.

Penalty: 5 penalty units.

 (6) An offence against subsection (4) or paragraph (5)(b) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

11510  Registrar may change document access address to a director’s address

 (1) If the corporation does not occupy the premises at the address of its document access address, the corporation must be able to show the Registrar the occupier’s written consent to the corporation’s use of those premises as its document access address.

Note: The Registrar can require the corporation to produce the consent (see section 11520).

 (2) The corporation commits an offence if it fails to comply with a request by the Registrar to show the Registrar that consent.

Penalty: 5 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (4) If the Registrar becomes aware that the occupier of those premises:

 (a) has not consented to the use of the premises as the address of the corporation’s document access address; or

 (b) has withdrawn the consent;

the Registrar may:

 (c) give written notice to a director of the corporation who resides in Australia that the Registrar intends to change the address of the corporation’s document access address to the director’s address; and

 (d) if the Registrar is not notified of the address of the corporation’s proposed new document access address under section 1155 within 14 days after the notice under that section is sent—change the address of the corporation’s document access address to the address of that director.

 (5) A notice under paragraph (4)(c) is not a legislative instrument.

11515  Registrar may direct corporation to change the location of its document access address

 (1) If the Registrar is satisfied that the corporation’s document access address is not in an area that allows the corporation’s members appropriate access to the corporation’s books, the Registrar may direct the corporation to change its document access address so that it is within the area specified in the direction.

 (2) The direction must:

 (a) be given by notice in writing to the corporation; and

 (b) specify the period within which the direction must be complied with.

 (3) The period specified under paragraph (2)(b) must be at least 28 days after the day on which the notice is given to the corporation.

 (4) The corporation commits an offence if it does not comply with the direction.

Penalty: 5 penalty units.

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (6) A direction under subsection (1) is not a legislative instrument.

11520  Address of document access address

 (1) If a provision of this Act requires a notice to be lodged of, or information in an application to specify:

 (a) the address of the document access address, or of a proposed document access address, of an Aboriginal and Torres Strait Islander corporation; or

 (b) a change in the situation and address of the document access address of an Aboriginal and Torres Strait Islander corporation;

the notice or information must specify the matters set out in subsections (2) and (3).

 (2) The notice or information must specify the full address, or the full new address, as the case requires, of the document access address including, where applicable, the number of the room and of the floor or level of the building in which the document access address is situated.

 (3) If the address specified in accordance with paragraph (1)(a) is the address of premises that the corporation will not occupy, the notice or information must include a written statement to the effect that:

 (a) the person who occupies those premises has consented in writing to the address being specified in the notice or application; and

 (b) has not withdrawn that consent.

 (4) The Registrar may require a person who has lodged a notice or application that includes a statement under subsection (3) to produce to the Registrar the consent referred to in the statement.

 (5) A requirement under subsection (4) is not a legislative instrument.

Part 38Service on Aboriginal and Torres Strait Islander corporations

Division 120Service on Aboriginal and Torres Strait Islander corporations

1201  Service on Aboriginal and Torres Strait Islander corporation

 (1) A notice, demand, summons, writ or other document or process may be served on an Aboriginal and Torres Strait Islander corporation by:

 (a) if the corporation is registered as a large corporation—leaving it at, or posting it to, the corporation’s registered office; or

 (b) if the corporation is registered as a large corporation—serving a copy of the document personally on the corporation secretary; or

 (c) if the corporation is registered as a small or medium corporation—serving a copy of the document personally on the contact person or by sending it by post to his or her address; or

 (d) serving a copy of the document personally on a director; or

 (e) if a liquidator of the corporation has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with the Registrar; or

 (f) if an administrator of the corporation has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with the Registrar; or

 (g) if a special administrator of the corporation has been appointed—leaving it at, or posting it to, the address of the special administrator in the most recent notice of that address lodged with the Registrar.

 (2) The address for service of the contact person is the address that is on the Register of Aboriginal and Torres Strait Islander Corporations for the contact person.

 (3) The Registrar may change the address on the register in respect of the registered office or contact person if:

 (a) the Registrar is notified of a new address by the corporation or contact person; or

 (b) the Registrar otherwise becomes aware that the corporation or contact person has a new address.

Note: This subsection also applies to a director’s address that has become the corporation’s registered office under section 11210 and to a director who has become a contact person under section 25725.

Chapter 4Members and observers

Part 41Introduction

Division 130Introduction

1301  What this Chapter is about

This Chapter deals with membership of Aboriginal and Torres Strait Islander corporations (Part 42), observers of Aboriginal and Torres Strait Islander corporations (Part 43), members’ rights (Part 44) and the register of members and the register of former members (Part 45).

Part 42Members

Division 135Introduction

1351  What this Part is about

This Part deals with membership of an Aboriginal and Torres Strait Islander corporation.

Division 138 deals with the meaning of member of an Aboriginal and Torres Strait Islander corporation.

Subdivision 141B deals with various rules that are imposed on an Aboriginal and Torres Strait Islander corporation concerning membership.

Subdivision 141C imposes 1 eligibility requirement for membership but a corporation may impose other such requirements. A registered native title body corporate must include particular eligibility requirements relating to common law holders.

Division 144 deals with how a person becomes a member.

Division 147 deals with member obligations.

Division 150 deals with how a person ceases to be member.

Division 153 provides for different classes of members.

Division 138Who is a member of an Aboriginal and Torres Strait Islander corporation?

1381  Meaning of member

 (1) A person is a member of an Aboriginal and Torres Strait Islander corporation if the person:

 (a) is a member of the corporation on its registration; or

 (b) agrees to become a member of the corporation after its registration and the person’s name is entered on the register of members.

Note: Section 1805 requires the corporation to enter the names and addresses of all of its members on the register of members.

 (2) A person referred to in paragraph (1)(b) becomes a member when the person’s name is entered on the register of members.

Note: Under section 4210, a person who is specified in the application for registration of an Aboriginal and Torres Strait Islander corporation as a member of the corporation becomes a member on registration of the corporation.

Division 141Membership of Aboriginal and Torres Strait Islander corporations

Subdivision 141AIntroduction

1411  Overview

 (1) There are ongoing requirements relating to the membership of an Aboriginal and Torres Strait Islander corporation that are imposed on the corporation (see Subdivision 141B).

 (2) These requirements have implications for the eligibility of persons for membership of Aboriginal and Torres Strait Islander corporations (see section 14120).

 (3) In addition, an Aboriginal and Torres Strait Islander corporation may impose additional eligibility requirements for membership of the corporation (see section 14125). A registered native title body corporate must include particular eligibility requirements relating to common law holders.

Subdivision 141BOngoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation

1415  Minimum number of members requirement

  An Aboriginal and Torres Strait Islander corporation must meet the minimum number of members requirement set out in section 775 at all times.

Note: Section 261 also requires the minimum number of members requirement (explained in section 291) to be met at registration of the corporation.

14110  Indigeneity requirement

 (1) An Aboriginal and Torres Strait Islander corporation must meet the Indigeneity requirement set out in section 295 at all times.

Note: Section 261 also requires the Indigeneity requirement (explained in section 295) to be met at registration of the corporation.

 (2) However, the corporation’s constitution may provide that the corporation must have a number or percentage of persons who are Aboriginal and Torres Strait Islander persons that is higher than the number or percentage required in the Indigeneity requirement.

 (3) An Aboriginal and Torres Strait Islander corporation that does increase the number or percentage of persons that are required to be Aboriginal and Torres Strait Islander persons is not in breach of subsection (1) only because that increased number or percentage is not attained.

14115  Age of members requirement

 (1) An Aboriginal and Torres Strait Islander corporation must meet the age of members requirement set out in section 2910 at all times.

Note 1: The requirement is that the members of the corporation be at least 15 years of age.

Note 2: Section 2910 also requires the age of members requirement to be met at registration of the corporation.

 (2) However, the corporation’s constitution may provide that the members of the corporation must be at least of an age that is older than 15 years.

 (3) An Aboriginal and Torres Strait Islander corporation that does increase the minimum age of members is not in breach of subsection (1) only because some members are younger than that increased minimum age.

Subdivision 141CA person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation

14120  Eligibility for membership

  An individual who is at least 15 years of age is eligible for membership of an Aboriginal and Torres Strait Islander corporation.

14125  Corporation may have other eligibility requirements for membership

 (1) The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other eligibility requirements for membership of the corporation.

 (2) If the corporation is a registered native title body corporate, the constitution must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly.

Division 144How to become a member of an Aboriginal and Torres Strait Islander corporation

1441  How does a person become a member?

  A person becomes a member of an Aboriginal and Torres Strait Islander corporation if:

 (a) the person applies as provided for in section 1445; and

 (b) the person is eligible for membership; and

 (c) the application is accepted as provided for in section 14410; and

 (d) the person is entered on the register of members (see subsection 14410(5)).

1445  Application to corporation

 (1) A person (the applicant) who wants to become a member of an Aboriginal and Torres Strait Islander corporation must apply to the corporation.

Application to be in writing (replaceable rule—see section 601)

 (2) The application must be in writing.

14410  Determination of applications for membership

 (1) The directors are responsible for deciding membership applications in respect of an Aboriginal and Torres Strait Islander corporation.

 (2) The directors must not accept an application for membership of the corporation unless:

 (a) the applicant applies for membership in the required manner; and

 (b) the applicant meets the eligibility for membership requirements of the corporation.

When membership application may be refused

 (3) Unless the corporation is a registered native title body corporate, the directors may refuse to accept the membership application even if paragraphs (2)(a) and (b) are complied with.

 (3A) The directors must accept the membership application if:

 (a) the corporation is a registered native title body corporate; and

 (b) paragraphs (2)(a) and (b) are complied with.

Circumstances when application not to be accepted

 (4) Despite subsections (3) and (3A), the directors must not accept the application if, by accepting the application, the corporation would be in breach of the requirement in section 14110 (to at all times be complying with the Indigeneity requirement).

If application accepted, entry on the register of members

 (5) If the directors accept the application, the corporation must enter the member on the register of members. Subject to subsection (8), the corporation must do so within 14 days of the acceptance.

Penalty: 5 penalty units.

Corporation to give notice if application not accepted

 (6) If the directors decide not to accept the application, the corporation must notify the person of the decision and the reasons for it.

Notice to be in writing (replaceable rule—see section 601)

 (7) The notice must be in writing.

No admission to membership before a general meeting has been held

 (8) If:

 (a) the applicant applies for membership after a notice has been given for the holding of a general meeting; and

 (b) the meeting has not been held at the time that the directors consider the application;

then the corporation must not enter the person on the register of members until after the general meeting has been held.

Penalty: 5 penalty units.

Note: An application may be made to exempt the corporation from the requirement of this subsection (see section 1875).

 (9) An offence against subsection (5) or (8) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

14415  Fees for membership and being an observer

 (1) Unless an Aboriginal and Torres Strait Islander corporation’s constitution provides otherwise, the corporation must not impose fees in respect of membership of the corporation or in respect of being an observer of the corporation.

Note: Section 1585 deals with observers.

 (2) If the corporation’s constitution provides for the charging of such fees, the fees, and the amount of the fees, are to be determined by the corporation by resolution in general meeting.

Division 147Obligations of members

1471  Obligation to contribute on winding up

  If an Aboriginal and Torres Strait Islander corporation’s constitution provides that the members must contribute to the property of the corporation on winding up then the members must so contribute. Otherwise, the members are not liable to contribute.

1475  Corporation may impose other member obligations

  The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other obligations that attach to membership of the corporation.

14710  Liability of corporation members

If application for registration says members are not to be liable for debts of the body

 (1) If the application for registration of an Aboriginal and Torres Strait Islander corporation states that people who are members and former members are not to be liable to contribute towards the payment of the debts and liabilities of the corporation, the members and former members are not liable so to contribute.

If application for registration says members are to be liable for debts of the body

 (2) If the application for registration states that people who are members and former members are to be liable to contribute towards the payment of the debts and liabilities of the corporation on a particular basis, the members and former members are liable so to contribute on that basis.

Division 150How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation?

Subdivision 150AGeneral

1501  Cessation of membership

Ways a membership ceases

 (1) This Division deals with the various ways in which a person ceases to be a member of an Aboriginal and Torres Strait Islander corporation. The various ways are:

 (a) if the person resigns as a member of the corporation (see Subdivision 150B); or

 (b) if the person dies; or

 (c) if the person’s membership of the corporation is cancelled (see Subdivision 150C); or

 (d) if the member is a body corporate and the body corporate ceases to exist.

When a person ceases to be a member

 (2) A person ceases to be a member when the member’s name is removed from the register of members as a current member of the corporation.

Subdivision 150BResignation of membership

15010  Resignation

Resignation to be given to corporation

 (1) A member of an Aboriginal and Torres Strait Islander corporation may resign as a member by notice given to the corporation.

Notice to be in writing (replaceable rule—see section 601)

 (2) The notice must be in writing.

Register to be amended within 14 days of resignation

 (3) Within 14 days after receiving the notice, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty: 5 penalty units.

 (4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision 150CCancellation of membership

15015  General

Eligibility for membership etc.

 (1) Section 15020 is a replaceable rule for Aboriginal and Torres Strait Islander corporations other than registered native title bodies corporate that provides a model for the cancellation of membership on the grounds of ineligibility for membership or failure to pay fees.

Note: As a replaceable rule, section 15020 can be modified or replaced by an Aboriginal and Torres Strait Islander corporation and replaced in whole or in part by a provision that suits the corporation’s particular circumstances (subject to the internal governance rules requirements).

 (1A) Section 15022 provides for cancellation of membership of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate on the grounds of ineligibility for membership or failure to pay fees. If membership of such a corporation is to be cancelled on either of these grounds, the only way the membership may be cancelled is as provided for in section 15022.

Specific grounds for cancellation of membership

 (2) Sections 15025, 15030 and 15035 deal with cancellation of membership on the grounds that:

 (a) the member is uncontactable (see section 15025); and

 (b) the member is not an Aboriginal and Torres Strait Islander person (see section 15030); and

 (c) the member has misbehaved (see section 15035).

If a membership is to be cancelled on any of the grounds set out in these sections, the only way the membership may be cancelled is as provided for in the applicable section.

Registered native title body corporate constitution may not include other grounds for cancellation

 (2A) The constitution of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate must not provide for cancellation of membership on any other ground.

Note: An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 1875).

Register to be amended within 14 days of membership being cancelled

 (3) Within 14 days after the cancellation of membership, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty: 5 penalty units.

 (4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

15020  Member of corporation that is not a registered native title body corporate not eligible for membership etc. (replaceable rule—see section 601)

Cancellation of membership if member is not eligible etc.

 (1) The directors of an Aboriginal and Torres Strait Islander corporation that is not a registered native title body corporate may, by resolution, cancel the membership of a member of the corporation if:

 (a) either:

 (i) the member is not eligible for membership; or

 (ii) the member has ceased to be eligible for membership of the corporation; or

 (b) the member has not paid the member’s membership fees (if any).

Member to be given notice

 (2) Before cancelling the membership, the directors must give the member notice in writing:

 (a) stating that the directors intend to cancel the membership for the reasons specified in the notice; and

 (b) stating that the member has 14 days to object to the cancellation of the membership; and

 (c) stating that the objection must be:

 (i) in writing; and

 (ii) given to the corporation within the period of 14 days from the day the notice is given.

If member does not object

 (4) If the member does not object as provided for in paragraph (2)(c), the directors must cancel the membership.

If member does object

 (5) If the member does object as provided for in paragraph (2)(c):

 (a) the directors must not cancel the membership; and

 (b) only the corporation by resolution in general meeting may cancel the membership.

Notice of resolution to be given

 (6) If the membership is cancelled, the directors must give the member a copy of the resolution (being either the resolution of the directors or the resolution of the general meeting) as soon as practicable after the resolution has been passed.

15022  Member of registered native title body corporate not eligible for membership etc.

Operation of section

 (1) This section operates despite any provision of the constitution of an Aboriginal and Torres Strait Islander corporation if the corporation is a registered native title body corporate.

Note: An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 1875).

Membership may be cancelled if not eligible etc.

 (2) If the membership of a member of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate is to be cancelled on the ground of ineligibility for membership or failure to pay fees, the membership may only be cancelled on that ground if the cancellation is effected in the manner and circumstances set out in subsections (3) to (6).

Manner and circumstances

 (3) The directors of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate may, by resolution, cancel the membership of a member of the corporation if:

 (a) either:

 (i) the member is not eligible for membership; or

 (ii) the member has ceased to be eligible for membership of the corporation; or

 (b) the member has not paid the member’s membership fees (if any).

 (4) Before cancelling the membership, the directors must give the member notice in writing:

 (a) stating that the directors intend to cancel the membership for the reasons specified in the notice; and

 (b) stating that the member has 14 days to object to the cancellation of the membership; and

 (c) stating that the objection must be:

 (i) in writing; and

 (ii) given to the corporation within the period of 14 days from the day the notice is given.

 (5) If the member does not object as provided for in paragraph (4)(c), the directors must cancel the membership.

 (6) If the member does object as provided for in paragraph (4)(c):

 (a) the directors must not cancel the membership; and

 (b) only the corporation by resolution in general meeting may cancel the membership.

Notice

 (7) If the membership is cancelled, the directors must give the member a copy of the resolution (being either the resolution of the directors or the resolution of the general meeting) as soon as practicable after the resolution has been passed.

Penalty: 5 penalty units.

 (8) An offence against subsection (7) is an offence of strict liability.

15025  Member not contactable

Operation of section

 (1) This section operates despite section 15020 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note: An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 1875).

Membership may be cancelled if not contactable

 (2) If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the ground that the member is not contactable, the membership may only be cancelled on that ground if the cancellation is effected in the manner and circumstances set out in subsection (3).

Manner and circumstances

 (3) The membership may be cancelled by special resolution in general meeting if:

 (a) the corporation has not been able to contact the member at the address for the member that is entered on the register of members; and

 (b) the corporation has not been able to contact that person at that address for a continuous period of 2 years prior to the meeting; and

 (c) the corporation has made 2 or more reasonable attempts to otherwise contact the member during that 2 year period but has been unable to.

Notice

 (4) If the corporation does so cancel the membership, the directors must send the member a copy of the resolution at the last known address of the member, as soon as practicable after the resolution has been passed.

Penalty: 5 penalty units.

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

15030  Member is not an Aboriginal and Torres Strait Islander person

Operation of section

 (1) This section operates despite section 15020 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note: An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 1875).

Membership may be cancelled if not an Aboriginal and Torres Strait Islander person

 (2) If it is a requirement for eligibility for membership of an Aboriginal and Torres Strait Islander corporation that a member be an Aboriginal and Torres Strait Islander person, a member’s membership may only be cancelled on the ground that the person is not such a person if the cancellation is effected in the manner and circumstance set out in subsection (3).

Manner and circumstances

 (3) The corporation, by special resolution in general meeting, may cancel the membership of the member if the general meeting is satisfied that the member is not an Aboriginal and Torres Strait Islander person.

Notice

 (4) If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty: 5 penalty units.

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

15035  Member misbehaves

Operation of section

 (1) This section operates despite section 15020 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note: An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 1875).

Membership may be cancelled if member misbehaves

 (2) If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the grounds that the member has misbehaved, the membership may only be cancelled on that ground if the cancellation is affected in the manner and circumstance provided for in subsection (3).

Manner and circumstances

 (3) The corporation may cancel the membership by special resolution in general meeting if the general meeting is satisfied that member has behaved in a manner that significantly interfered with the operation of the corporation or of corporation meetings.

Notice

 (4) If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty: 5 penalty units.

Strict liability offence

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Division 153Can there be different classes of members?

1531  Different classes of members

 (1) An Aboriginal and Torres Strait Islander corporation’s constitution may provide that the corporation has different classes of members.

 (2) The corporation’s constitution may provide that different rights may attach to different classes of membership.

Note: The rule under section 201115 that, subject to those different rights, each member has 1 vote on a show of hands and, on a poll, 1 vote is a replaceable rule.

Part 43Observers

Division 158Observers

1581  What this Part is about

This Part enables an Aboriginal and Torres Strait Islander corporation to have observers of the corporation if observers are provided for in the corporation’s constitution.

If the corporation chooses to have observers, the corporation’s constitution must also provide for the appointment of observers, their rights and obligations (if any) and how the observers cease to be observers.

1585  Observers

Corporation may have observers

 (1) An Aboriginal and Torres Strait Islander corporation’s constitution may provide for the corporation to have observers.

Entitlement of observer to attend general meeting (replaceable rule—see section 601)

 (2) An observer is entitled to attend a general meeting of the corporation but is not a member of the corporation.

Note: Only members of an Aboriginal and Torres Strait Islander corporation may vote at a meeting of the corporation (see section 201115).

Other matters for which constitution must provide if corporation has observers

 (3) If the constitution provides for the corporation to have observers, the constitution must also provide for the following matters:

 (a) the application process for becoming an observer of the corporation;

 (b) the eligibility criteria for becoming an observer of the corporation;

 (c) the obligations (if any) imposed on an observer of the corporation;

 (d) the rights (if any) that an observer has in relation to the corporation;

 (e) how an observer ceases to be an observer of the corporation.

Part 44Protection of members’ interests

Division 163Rights and remedies to protect interests of members

1631  Rights and remedies

  The rights and remedies that are conferred by this Part to protect the interests of members of Aboriginal and Torres Strait Islander corporations are:

 (a) the right to seek a Court order concerning oppressive conduct of the affairs of the corporation as provided for in Division 166; and

 (b) the right to bring or intervene in proceedings on behalf of the corporation as provided for in Division 169; and

 (c) the rights relating to the changing of class rights as provided for in Division 172; and

 (d) the right to apply to the Court for an order to inspect the corporation’s books as provided for in Division 175.

Division 166Oppressive conduct of affairs

1661  Grounds for Court order

 (1) Subject to subsection (2), the Court may make an order under section 1665 if:

 (a) the conduct of an Aboriginal and Torres Strait Islander corporation’s affairs; or

 (b) an actual or proposed act or omission by or on behalf of an Aboriginal and Torres Strait Islander corporation; or

 (c) a resolution, or a proposed resolution, of members or a class of members of an Aboriginal and Torres Strait Islander 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.

 (2) If the corporation is a registered native title body corporate, the Court must not make an order under subsection 1665(1) 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.

1665  Orders the Court can make

 (1) The Court can make any order under this section that it considers appropriate in relation to the corporation, including the following:

 (a) an order that the corporation be wound up;

 (b) an order that the corporation’s existing constitution be modified or repealed and replaced;

 (c) an order regulating the conduct of the corporation’s affairs in the future;

 (d) an order for the corporation to institute, prosecute, defend or discontinue specified proceedings;

 (e) an order appointing a receiver, or a receiver and manager, of any or all of the corporation’s property;

 (f) an order restraining a person from engaging in specified conduct or from doing a specified act;

 (g) an order requiring a person to do a specified act.

Order that the corporation be wound up

 (2) If an order that the corporation be wound up is made under this section, the provisions of this Act relating to the winding up of Aboriginal and Torres Strait Islander corporations apply:

 (a) as if the order were made under section 5261; and

 (b) with such changes as are necessary.

Without limiting this, section 52635 (which applies certain provisions of the Corporations Act) applies to the winding up.

Changes to constitution made after order that are inconsistent with the Court ordered change

 (3) If:

 (a) the constitution of the corporation is changed by an order made under this section; and

 (b) after the order, a change to the constitution is proposed; and

 (c) the proposed change is inconsistent with the change made by the order;

the Registrar must not register the proposed change unless:

 (d) the order states that the constitution can be changed; or

 (e) the leave of the court is obtained by:

 (i) in any case—the Registrar; or

 (ii) if the change is not to be made under section 6935—the corporation.

Note: See section 6910 for the meaning of changed in relation to an Aboriginal and Torres Strait Islander corporation’s constitution.

16610  Who can apply for an order?

  An application for an order under section 1665 in relation to an Aboriginal and Torres Strait Islander corporation may be made by:

 (a) a member of the corporation, even if the application relates to an act or omission that is against:

 (i) the member in a capacity other than as a member; or

 (ii) another member in that member’s capacity as a member; or

 (b) a person who has ceased to be a member of the corporation if the application relates to the circumstances in which the person ceased to be a member; or

 (c) a person whom the Registrar thinks appropriate having regard to investigations the Registrar is conducting or has conducted into:

 (i) the corporation’s affairs; or

 (ii) matters connected with the corporation’s affairs; or

 (d) the Registrar.

16615  Requirement for person to lodge order

 (1) If an order is made under section 1665, the applicant must lodge a copy of the order with the Registrar within 14 days after it is made.

 (2) Subsection (1) does not apply if the applicant is the Registrar.

 (3) A person commits an offence if the person contravenes subsection (1).

Penalty: 50 penalty units or imprisonment for 12 months, or both.

 (4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Division 169When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation?

1691  Bringing, or intervening in, proceedings on behalf of a corporation

 (1) A person who is:

 (a) either:

 (i) a member, former member, or person entitled to be registered as a member of an Aboriginal and Torres Strait Islander corporation or of a related body corporate; or

 (ii) an officer or former officer of the corporation; or

 (iii) the Registrar; and

 (b) acting with leave granted under section 1695;

may:

 (c) bring proceedings on behalf of an Aboriginal and Torres Strait Islander corporation; or

 (d) intervene in any proceedings to which an Aboriginal and Torres Strait Islander corporation is a party for the purpose of taking responsibility on behalf of the corporation for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them).

 (2) Proceedings brought on behalf of the corporation must be brought in the corporation’s name.

 (3) Any right a person may have otherwise had at general law to bring, or intervene in, proceedings on behalf of an Aboriginal and Torres Strait Islander corporation is abolished.

Note: This section does not prevent a person bringing, or intervening in, proceedings on the person’s own behalf in respect of a personal right.

1695  Applying for and granting leave

Who may apply for leave?

 (1) A person referred to in paragraph 1691(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings.

Court to grant the application in certain circumstances

 (2) The Court must grant the application if it is satisfied that:

 (a) it is probable that the corporation will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

 (b) the applicant is acting in good faith; and

 (c) it is in the best interests of the corporation that the applicant be granted leave; and

 (d) if the applicant is applying for leave to bring proceedings—there is a serious question to be tried; and

 (e) either:

 (i) at least 14 days before making the application, the applicant gave written notice to the corporation of the intention to apply for leave and of the reasons for applying; or

 (ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied.

This subsection has effect subject to subsections (3) and (5).

When leave is not in the best interests of the corporation

 (3) A rebuttable presumption that granting leave is not in the best interests of the corporation arises if it is established that:

 (a) the proceedings are:

 (i) by the corporation against a person who is not a related party of the corporation; or

 (ii) by such a person against the corporation;

  (including any appeal from a decision made in proceedings by or against the corporation); and

 (b) the corporation has decided:

 (i) not to bring the proceedings; or

 (ii) not to defend the proceedings; or

 (iii) to discontinue, settle or compromise the proceedings; and

 (c) all of the directors who participated in that decision:

 (i) acted in good faith for a proper purpose; and

 (ii) did not have a material personal interest in the decision; and

 (iii) informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and

 (iv) rationally believed that the decision was in the best interests of the corporation.

Note: Related party is defined in section 2931.

 (4) A director’s belief that the decision was in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Decision taken to give effect to Native Title legislation obligation

 (5) The Court must not grant the application if:

 (a) the corporation has decided:

 (i) not to bring the proceedings; or

 (ii) not to defend the proceedings; or

 (iii) to discontinue, settle or compromise the proceedings; and

 (b) an officer or employee of the corporation made that decision:

 (i) in good faith; and

 (ii) with the belief that making the decision was necessary to ensure that the corporation complies with a Native Title legislation obligation.

16910  Substitution of another person for the person granted leave

 (1) Any of the following persons may apply to the Court for an order that the person be substituted for a person to whom leave has been granted under section 1695:

 (a) a member, former member, or a person entitled to be registered as a member of the corporation or of a related body corporate;

 (b) an officer, or former officer of the corporation;

 (c) the Registrar.

When may Court make order

 (2) The Court may make the order if it is satisfied that:

 (a) the applicant is acting in good faith; and

 (b) it is appropriate to make the order in all the circumstances.

 (3) An order substituting one person for another has the effect that:

 (a) the grant of leave is taken to have been made in favour of the substituted person; and

 (b) if the other person has already brought the proceedings or intervened—the substituted person is taken to have brought those proceedings or to have made that intervention.

16915  Effect of ratification by members

 (1) If the members of an Aboriginal and Torres Strait Islander corporation ratify or approve conduct, the ratification or approval:

 (a) does not prevent a person from bringing or intervening in proceedings with leave under section 1695 or from applying for leave under that section; and

 (b) does not have the effect that proceedings brought or intervened in with leave under section 1695 must be determined in favour of the defendant, or that an application for leave under that section must be refused.

Effect of ratification on court

 (2) If the members of an Aboriginal and Torres Strait Islander corporation ratify or approve conduct, the Court may take the ratification or approval into account in deciding what order or judgment (including as to damages) to make in:

 (a) proceedings brought or intervened in with leave under section 1695; or

 (b) in relation to an application for leave under that section.

 (3) In doing this, it must have regard to:

 (a) how wellinformed about the conduct the members were when deciding whether to ratify or approve the conduct; and

 (b) whether the members who ratified or approved the conduct were acting for proper purposes.

16920  Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave

  Proceedings brought or intervened in with leave must not be discontinued, compromised or settled without the leave of the Court.

16925  General powers of the Court

 (1) The Court may make any orders, and give any directions, that it considers appropriate in relation to proceedings brought or intervened in with leave, or an application for leave, including:

 (a) interim orders; and

 (b) directions about the conduct of the proceedings, including requiring mediation; and

 (c) an order directing the corporation, or an officer of the corporation, to do, or not to do, any act; and

 (d) an order appointing an independent person to investigate, and report to the Court on:

 (i) the financial affairs of the corporation; or

 (ii) the facts or circumstances which gave rise to the cause of action the subject of the proceedings; or

 (iii) the costs incurred in the proceedings by the parties to the proceedings and the person granted leave.

Persons appointed under paragraph (1)(d) may inspect books

 (2) A person appointed by the Court under paragraph (1)(d) is entitled, on giving reasonable notice to the corporation, to inspect any books of the corporation for any purpose connected with his or her appointment.

Remuneration and expenses for persons appointed under paragraph (1)(d)

 (3) If the Court appoints a person under paragraph (1)(d):

 (a) the Court must also make an order stating who is liable for the remuneration and expenses of the person appointed; and

 (b) the Court may vary the order at any time; and

 (c) the persons who may be made liable under the order, or the order as varied, are:

 (i) all or any of the parties to the proceedings or application; and

 (ii) the corporation; and

 (d) if the order, or the order as varied, makes 2 or more persons liable, the order may also determine the nature and extent of the liability of each of those persons.

 (4) Subsection (3) does not affect the powers of the Court as to costs.

16930  Power of the Court to make costs orders

 (1) The Court may at any time make any orders it considers appropriate about the costs of the following persons in relation to proceedings brought or intervened in with leave under section 1695 or an application for leave under that section:

 (a) the person who applied for or was granted leave;

 (b) the corporation;

 (c) any other party to the proceedings or application.

 (2) An order under this section may require indemnification for costs.

Division 172What protections apply to variations or cancellations of class rights?

1721  Varying and cancelling class rights

If constitution sets out procedure

 (1) If an Aboriginal and Torres Strait Islander corporation’s constitution sets out the procedure for varying or cancelling rights of members in a class of members, those rights may be varied or cancelled only in accordance with the procedure. The procedure may be changed only if the procedure itself is complied with.

If constitution does not set out procedure

 (2) If an Aboriginal and Torres Strait Islander corporation’s constitution does not set out the procedure for varying or cancelling rights of members in a class of members, those rights may be varied or cancelled only by special resolution of the corporation and:

 (a) by special resolution passed at a meeting of the class of members whose rights are being varied or cancelled; or

 (b) with the written consent of members with at least 75% of the votes in the class.

Notice of variation

 (3) The corporation must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or cancellation is made.

 (4) The corporation commits an offence if it contravenes subsection (3).

Penalty: 5 penalty units.

 (5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

1725  Certain actions taken to vary rights etc

 (1) If the members in a class of members of an Aboriginal and Torres Strait Islander corporation are divided into further classes of members and, after the division, the rights of all of those members are not the same:

 (a) the division is taken to vary the rights of every member who was in the class existing before the division; and

 (b) members who have the same rights after the division form a separate class.

 (2) If the rights of some of the members in a class of members are varied:

 (a) the variation is taken to vary the rights of every other member who was in the class existing before the variation; and

 (b) members who have the same rights after the variation form a separate class.

17210  Variation, cancellation or modification without unanimous support of class

 (1) If members in a class of members of an Aboriginal and Torres Strait Islander corporation do not all agree (whether by resolution or written consent) to:

 (a) a variation or cancellation of their rights; or

 (b) a modification of the corporation’s constitution (if any) to allow their rights to be varied or cancelled;

members with at least 10% of the votes in the class may apply to the Court to have the variation, cancellation or modification set aside.

 (2) An application may only be made within 28 days after the variation, cancellation or modification is made.

 (3) The variation, cancellation or modification takes effect:

 (a) if no application is made to the Court to have it set aside—28 days after the variation, cancellation or modification is made; or

 (b) if an application is made to the Court to have it set aside—when the application is withdrawn or finally determined.

 (4) The members of the class who want to have the variation, cancellation or modification set aside may appoint one or more of themselves to make the application on their behalf. The appointment must be in writing.

 (5) The Court may set aside the variation, cancellation or modification if it is satisfied that it would unfairly prejudice the applicants. However, the Court must confirm the variation, cancellation or modification if the Court is not satisfied of unfair prejudice.

 (6) Within 14 days after the Court makes an order, the corporation must lodge a copy of the order with the Registrar.

 (7) The corporation commits an offence if it contravenes subsection (6).

Penalty: 5 penalty units.

 (8) An offence against subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

17215  Variation, cancellation or modification with unanimous support of class

  If the members in a class of members of an Aboriginal and Torres Strait Islander corporation all agree (whether by resolution or written consent) to the variation, cancellation or modification, it takes effect:

 (a) if no later date is specified in the resolution or consent—on the date of the resolution or consent; or

 (b) on a later date specified in the resolution or consent.

Division 175When may a member inspect a corporation’s books?

1751  Order for inspection of books of corporation

 (1) On application by a member of an Aboriginal and Torres Strait Islander corporation, the Court may make an order:

 (a) authorising the applicant to inspect books of the corporation; or

 (b) authorising another person (whether a member or not) to inspect books of the corporation on the applicant’s behalf.

The Court may only make the order if it is satisfied that the applicant is acting in good faith and that the inspection is to be made for a proper purpose.

 (2) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

 (3) A person who:

 (a) is granted leave under section 1695; or

 (b) applies for leave under that section; or

 (c) is eligible to apply for leave under that section;

may apply to the Court for an order under this section.

 (4) On application, the Court may make an order authorising:

 (a) the applicant to inspect books of the corporation; or

 (b) another person to inspect books of the corporation on the applicant’s behalf.

 (5) The Court may make the order only if it is satisfied that:

 (a) the applicant is acting in good faith; and

 (b) the inspection is to be made for a purpose connected with:

 (i) applying for leave under section 1695; or

 (ii) bringing or intervening in proceedings with leave under that section.

 (6) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

 (7) If the person authorised by the Court under paragraph (1)(b) or paragraph (4)(b) is the Registrar, the Registrar may appoint another person to inspect the books of the corporation on the Registrar’s behalf.

1755  Ancillary orders

  If the Court makes an order under section 1751, the Court may make any other orders it considers appropriate, including either or both of the following:

 (a) an order limiting the use that a person who inspects books may make of information obtained during the inspection;

 (b) an order limiting the right of a person who inspects books to make copies in accordance with subsection 1751(2).

17510  Disclosure of information acquired in inspection

 (1) A person who inspects books on behalf of an applicant under section 1751 must not disclose information obtained during the inspection.

 (2) Subsection (1) does not apply to the extent that the disclosure is to:

 (a) the Registrar; or

 (b) the applicant.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

 (3) A person commits an offence if the person contravenes subsection (1).

Penalty: 50 penalty units or imprisonment for 12 months, or both.

 (4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

17515  Corporation or directors may allow member to inspect books (replaceable rule—see section 601)

  The directors of an Aboriginal and Torres Strait Islander corporation, or the corporation by a resolution passed at a general meeting, may authorise a member to inspect books of the corporation.

Part 45Registers of members and former members

Division 180Registers of members and former members

1801  Aboriginal and Torres Strait Islander corporations to maintain register of members

 (1) An Aboriginal and Torres Strait Islander corporation must set up and maintain a register of members.

 (2) An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty: 10 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

1805  Information on the register of members

 (1) The register of members must contain the following information about each member who is an individual:

 (a) the member’s given and family name;

 (b) the member’s address;

 (c) the date on which the entry of the member’s name in the register was made.

The register may also contain any other name by which the member is or was known.

 (1A) The register of members must contain the following information about each member who is a body corporate:

 (a) the member’s name and address;

 (b) the date on which the entry of the member’s name in the register was made.

 (2) If:

 (a) the corporation’s constitution allows for members who are not Aboriginal and Torres Strait Islander persons; and

 (b) a member is not an Aboriginal and Torres Strait Islander person;

the entry for the member in the register must also indicate that the member is not an Aboriginal and Torres Strait Islander person.

18010  Aboriginal and Torres Strait Islander corporations to maintain register of former members

 (1) An Aboriginal and Torres Strait Islander corporation must set up and maintain a register of former members.

 (2) An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty: 10 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

18015  Information on the register of former members

 (1) The register of former members must contain the following information about each individual who stopped being a member of the corporation within the last 7 years:

 (a) the member’s given and family name;

 (b) the member’s address;

 (c) the date on which the individual stopped being a member.

The register may also contain any other name by which the individual is or was known.

 (2) The register of former members must contain the following information about each body corporate that stopped being a member of the corporation within the last 7 years:

 (a) the member’s name and address;

 (b) the date on which the body stopped being a member.

18020  Location and inspection of registers

 (1) An Aboriginal and Torres Strait Islander corporation must keep the register of members and the register of former members at:

 (a) the corporation’s registered office if the corporation is registered as a large corporation; or

 (b) the corporation’s document access address if the corporation is registered as a small or medium corporation.

Penalty: 10 penalty units.

 (2) The register must be open for inspection by any person.

 (3) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

18022  Register of members and register of former members may be maintained in one document

  Nothing in this Act prevents an Aboriginal and Torres Strait Islander corporation from maintaining its register of members, and its register of former members, in the one document.

18025  Right to inspect and get copies

Right to inspect

 (1) Any person has a right to inspect an Aboriginal and Torres Strait Islander corporation’s register of members and register of former members.

Note 1: A corporation commits an offence under section 3761 if it does not allow inspection of a register.

Note 2: Other provisions that are relevant to the inspection of a register are:

(a) section 18045 (evidentiary value); and

(b) section 3761 (place and times for inspection); and

(c) section 37620 (form).

 (2) If the register is not kept on computer, the corporation must allow the person to inspect the register itself.

 (3) If the register is kept on a computer, the corporation must (unless the person and the corporation agree that the person can access the information by computer) allow the person to inspect a hard copy of the information on the register.

Inspection fees

 (4) A member of the corporation may inspect the register without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the corporation.

Right to get copies

 (5) The corporation must give a person a copy of the register (or a part of the register) within 7 days if the person:

 (a) asks for the copy; and

 (b) pays any fee (up to the prescribed amount) required by the corporation.

The Registrar may allow a longer period to comply with the request.

Penalty: 10 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.

18030  Aboriginal and Torres Strait Islander corporation to make register of members available at AGM

 (1) An Aboriginal and Torres Strait Islander corporation must:

 (a) make the register of members available for inspection (without charge) by members at the AGM; and

 (b) ask each member attending the AGM to:

 (i) check the entry for that member in the register; and

 (ii) inform the corporation of any corrections that need to be made to that entry.

Penalty: 10 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.

18035  Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members or register of former members

 (1) The Registrar may, at any time, request the corporation to give him or her a copy of the register of members, or the register of former members, as at the date when the copy is given to the Registrar, and the corporation must comply with the request within 14 days or such longer period as the Registrar specifies.

Note: An Aboriginal and Torres Strait Islander corporation must give a general report to the Registrar in respect of each financial year. That report must include details of the names and addresses of the corporation’s members: see sections 3301 and 3305.

 (2) An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty: 10 penalty units.

 (3) An offence against subsection (2) is an offence of strict liability.

Note 1: For strict liability, see section 6.1 of the Criminal Code.

Note 2: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of this section. See sections 26540 and 38610.

18040  Correction of register of members or register of former members

 (1) The corporation, or a person aggrieved, may apply to the Court to have the register of members or the register of former members corrected.

 (2) If the Court orders the corporation to correct the register, it may also order the corporation to compensate a party to the application for loss or damage suffered.

18045  Evidentiary value of registers

  In the absence of evidence to the contrary, the register of members and the register of former members are proof of the matters shown in the registers under this Part.

Division 183Use of information on the register of members or register of former members

1831  Use of information on register of members or register of former members

 (1) A person must not:

 (a) use information about a person obtained from a register of members, or register of former members, to contact or send material to the person; or

 (b) disclose information of that kind knowing that the information is likely to be used to contact or send material to the person.

Note: An example of using information to send material to a person is putting a person’s name and address on a mailing list for advertising material.

 (2) Subsection (1) does not apply if the use or disclosure of the information is:

 (a) relevant to the person’s membership, or former membership, of the corporation or the exercise of the person’s rights as a member, or former member, of the corporation; or

 (b) approved by the corporation.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

 (3) A person commits an offence if the person contravenes subsection (1).

Penalty: 10 penalty units.

 (4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (5) A person who contravenes subsection (1) is liable to compensate anyone else who suffers loss or damage because of the contravention.

 (6) A person who makes a profit from a contravention of subsection (1) owes a debt to the corporation. The amount of the debt is the amount of the profit.

 (7) If a person owes a debt under subsection (6) to the corporation:

 (a) the debt may be recovered by the corporation as a debt due to it; and

 (b) any amount paid or recovered in respect of the debt forms part of the corporation’s property.

Part 46Exemption from operation of certain provisions of this Chapter

Division 187Exemption from operation of certain provisions of this Chapter

1871  What this Part is about

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation from certain provisions of this Chapter. The Registrar may do so on application or on his or her own volition.

1875  Exemption from certain provisions of this Chapter

 (1) On an application made in accordance with subsection (3) in relation to an Aboriginal and Torres Strait Islander corporation, the Registrar may make a determination in writing exempting any of the following from the exemptible provisions of this Chapter specified in the Registrar’s determination:

 (a) the corporation itself;

 (b) the directors of the corporation.

Note: For the criteria for making determinations under this section, see section 18720.

 (2) For the purposes of this section, the exemptible provisions of this Chapter are:

 (a) subsection 14410(8); and

 (aa) subsection 15015(2A); and

 (ab) section 15022; and

 (b) section 15025; and

 (c) section 15030; and

 (d) section 15035.

 (3) The application must:

 (a) specify the exemptible provisions in relation to which the exemption is being sought; and

 (b) be authorised by a resolution of the directors; and

 (c) be in writing and signed by a director; and

 (d) be lodged with the Registrar.

 (4) The determination may:

 (a) be expressed to be subject to conditions; and

 (b) be indefinite or limited to a specified period.

 (5) The Registrar may, in writing, revoke, vary or suspend the determination.

 (6) The Registrar must give the applicant written notice within 28 days of the making, revocation, variation or suspension of the determination.

 (7) A determination under subsection (1), or a revocation, variation or suspension under subsection (5), is not a legislative instrument.

18710  Registrar may make determination even if application is incomplete

  Despite subsection 1875(3), the Registrar may make a determination even if the application does not specify the provisions in relation to which the exemption is being sought.

18715  Registrar’s power to make determinations

 (1) The Registrar may determine in writing that:

 (a) a specified Aboriginal and Torres Strait Islander corporation or a specified class of Aboriginal and Torres Strait Islander corporation; and

 (b) the directors of a specified Aboriginal and Torres Strait Islander corporation or of a specified class of Aboriginal and Torres Strait Islander corporation (as the case may be);

are exempted from the exemptible provision of this Chapter specified in the Registrar’s determination.

Note: For the criteria for making determinations under this section, see section 18720.

 (2) For the purposes of this section, the exemptible provisions of this Chapter are:

 (a) subsection 14410(8); and

 (aa) subsection 15015(2A); and

 (ab) section 15022; and

 (b) section 15025; and

 (c) section 15030; and

 (d) section 15035.

 (3) The determination may:

 (a) be expressed to be subject to conditions; and

 (b) be indefinite or limited to a specified period.

 (4) The Registrar may, in writing, revoke, vary or suspend the determination.

 (5) Notice of the making, revocation, variation or suspension of a determination in relation to a specified class of Aboriginal and Torres Strait Islander corporation, or the directors of a specified class of Aboriginal and Torres Strait Islander corporation, must be published in the Gazette.

 (6) A determination under subsection (1) in relation to:

 (a) a specified class of Aboriginal and Torres Strait Islander corporation; or

 (b) the directors of a specified class of Aboriginal and Torres Strait Islander corporation;

is a legislative instrument.

 (7) A determination under subsection (1) in relation to:

 (a) a specified Aboriginal and Torres Strait Islander corporation; or

 (b) the directors of a specified Aboriginal and Torres Strait Islander corporation;

is not a legislative instrument.

18720  Criteria for determinations

 (1) In making a determination under section 1875 or 18715, the Registrar must be satisfied that the requirements of the relevant exemptible provisions of this Chapter would:

 (a) be inappropriate in the circumstances; or

 (b) impose unreasonable burdens.

Unreasonable burden

 (2) In deciding for the purposes of subsection (1) if the relevant exemptible provisions impose an unreasonable burden on the corporation or corporations, the Registrar is to have regard to:

 (a) the expected costs of complying with the obligations; and

 (b) the expected benefits of having the corporation or corporations comply with the obligations; and

 (c) any practical difficulties that the corporation or corporations face in complying effectively with the obligations; and

 (d) any other matters that the Registrar considers relevant.

Chapter 5Meetings

Part 51Introduction

Division 193Introduction

1931  What this Chapter is about

This Chapter deals with 2 kinds of meetings that Aboriginal and Torres Strait Islander corporations may have—directors’ meetings and general meetings.

This Chapter sets out the rules for those meetings. Some of those rules may be modified or replaced by the corporation’s constitution. Others cannot be.

An Aboriginal and Torres Strait Islander corporation may be exempted in part from some of the requirements of this Chapter (see Part 55).

Part 52General meetings

Division 198Introduction

1981  What this Part is about

This Part sets out the rules for holding general meetings. An Aboriginal and Torres Strait Islander corporation is required to hold annual general meetings.

Some of the rules in this Chapter may be modified or replaced by the corporation’s constitution. Others cannot be.

Division 201What are the rules concerning general meetings?

Subdivision 201AWho may call general meetings?

2011  Director may call meetings (replaceable rule—see section 601)

  A director of an Aboriginal and Torres Strait Islander corporation may call a general meeting of the corporation.

2015  Request by members for directors to call general meetings

Which members may make a request?

 (1) The directors of an Aboriginal and Torres Strait Islander corporation must call and arrange to hold a general meeting on the request of at least the required number of members under subsection (4).

 (2) The request must:

 (a) be in writing; and

 (b) state any resolution to be proposed at the meeting; and

 (c) be signed by the members making the request; and

 (d) nominate a member (the nominated member) to be the contact member on behalf of the members making the request; and

 (e) be given to the corporation.

 (3) Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

 (4) The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

 (a) 5 members of the corporation; or

 (b) 10% of the members of the corporation.

 (5) The regulations may prescribe a different number of members for the purposes of applying paragraph (4)(a) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

 (6) The regulations may prescribe a different percentage for the purposes of applying paragraph (4)(b) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

20110  When must directors comply with members’ request?

 (1) If the directors resolve:

 (a) that the request under section 2015 is frivolous or unreasonable; or

 (b) that complying with the request would be contrary to the interests of the members as a whole;

a director, on behalf of all of the directors, may apply to the Registrar for permission to deny the request.

 (2) The application must:

 (a) be in writing; and

 (b) set out the ground on which the application is made; and

 (c) be made within 21 days after the request is made.

 (3) The directors must, as soon as is practicable after making the application, give the nominated member notice that an application has been made under subsection (1).

 (4) The Registrar must:

 (a) determine the application within 21 days after receiving it; and

 (b) notify the director, the corporation and the nominated member in writing of the outcome of the determination.

20115  When must a requested meeting be held?

No application to Registrar under section 20110

 (1) If a director has not applied to the Registrar under section 20110 in respect of the request, the directors must call the requested meeting within 21 days after the request is given to the corporation.

Application to Registrar under section 20110

 (2) If:

 (a) a director has applied under section 20110 in respect of the request; and

 (b) the Registrar’s decision is that the ground is not made out;

the directors must call the meeting within 21 days after being notified of the Registrar’s determination.

Subdivision 201BHow to call general meetings

20120  Amount of notice of general meetings

General rule

 (1) Subject to subsection (2), at least 21 days notice must be given of a general meeting. However, an Aboriginal and Torres Strait Islander corporation’s constitution may specify a longer minimum period of notice.

Calling meetings on shorter notice

 (2) An Aboriginal and Torres Strait Islander corporation:

 (a) may call an AGM on shorter notice, if all the members of the corporation agree beforehand; and

 (b) may call any other general meeting on shorter notice, if at least 95% of the members of the corporation agree beforehand.

An Aboriginal and Torres Strait Islander corporation cannot call an AGM or other general meeting on shorter notice if it is a meeting of the kind referred to in subsection (3) or (4).

Shorter notice not allowed—removing or appointing director

 (3) At least 21 days notice must be given of a general meeting at which a resolution will be moved to:

 (a) remove a director under section 24910; or

 (b) appoint a director in place of a director removed under that section.

Shorter notice not allowed—removing auditor

 (4) At least 21 days notice must be given of a general meeting at which a resolution will be moved to remove an auditor.

20125  Notice of general meeting to members, officers and observers

Notice to members, officers and observers

 (1) Written notice of a general meeting must be given by the corporation to the following persons:

 (a) each member entitled to vote at the meeting;

 (b) each director;

 (c) the corporation secretary (if any);

 (d) the contact person (if any);

 (e) any observer entitled to attend the meeting.

Note: A failure to give notice to a member might not invalidate the meeting (see section 57615).

Notice to joint members (replaceable rule—see section 601)

 (2) Notice to joint members must be given to the joint member named first in the register of members.

How notice is given

 (3) The corporation may give the notice of meeting to a member:

 (a) personally; or

 (b) by sending it by post to the address for the member in the register of members or the alternative address (if any) nominated by the member; or

 (c) by sending it to the fax number or electronic address (if any) nominated by the member; or

 (d) by sending it to the member by other electronic means (if any) nominated by the member; or

 (e) by notifying the member in accordance with subsection (4); or

 (f) by any other means that the corporation’s constitution (if any) permits.

Note: A defect in the notice given may not invalidate a meeting (see section 57615).

 (4) If the member nominates:

 (a) an electronic means (the nominated notification means) by which the member may be notified that notices of meeting are available; and

 (b) an electronic means (the nominated access means) the member may use to access notices of meeting;

the corporation may give the member notice of the meeting by notifying the member (using the nominated notification means):

 (c) that the notice of meeting is available; and

 (d) how the member may use the nominated access means to access the notice of meeting.

This subsection does not limit subsection (3).

When notice by post or fax is given (replaceable rule—see section 601)

 (5) A notice of meeting sent by post is taken to be given 3 days after it is posted. A notice of meeting sent by fax, or other electronic means, is taken to be given on the business day after it is sent.

When notice under paragraph (3)(e) is given (replaceable rule—see section 601)

 (6) A notice of meeting given to a member under paragraph (3)(e) is taken to be given on the business day after the day on which the member is notified that the notice of meeting is available.

20130  Auditor entitled to notice and other communications

 (1) An Aboriginal and Torres Strait Islander corporation must give its auditor (if any):

 (a) notice of a general meeting in the same way that a member of the corporation is entitled to receive notice; and

 (b) any other communications relating to the general meeting that a member of the corporation is entitled to receive.

Penalty: 5 penalty units.

Note: An auditor may authorise a representative to attend a meeting (see subsection 20180(4).

 (2) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

20135  Contents of notice of general meeting

 (1) A notice of a general meeting must:

 (a) set out the place, date and time for the meeting (and, if the meeting is to be held in 2 or more places, the technology that will be used to facilitate this); and

 (b) state the general nature of the meeting’s business; and

 (c) if a special resolution is to be proposed at the meeting—set out an intention to propose the special resolution and state the resolution; and

 (d) if a member is entitled to appoint a proxy—contain a statement setting out the following information:

 (i) that the member has a right to appoint a proxy;

 (ii) whether or not the proxy needs to be a member of the corporation;

 (iii) that a member who is entitled to cast 2 or more votes may appoint 2 proxies and may specify the proportion or number of votes each proxy is appointed to exercise.

Note: There may be other requirements for disclosure to members.

 (2) The information included in the notice of meeting must be worded and presented in a clear, concise and effective manner.

Subdivision 201CMembers’ rights to put resolutions etc. to general meeting

20140  Members’ resolutions

 (1) Notice of a resolution that they propose to move at a general meeting may be given to an Aboriginal and Torres Strait Islander corporation by at least the required number of members under subsection (4).

 (2) The notice must:

 (a) be in writing; and

 (b) set out the wording of the proposed resolution; and

 (c) be signed by the members proposing to move the resolution.

 (3) Separate copies of a document setting out the notice may be used for signing by members if the wording of the notice is identical in each copy.

 (4) The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

 (a) 5 members of the corporation; or

 (b) 10% of the members of the corporation.

 (5) The regulations may prescribe a different number of members for the purposes of applying paragraph (4)(a) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

 (6) The regulations may prescribe a different percentage for the purposes of applying paragraph (4)(b) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

20145  Notice of members’ resolutions

 (1) If an Aboriginal and Torres Strait Islander corporation has been given notice of a resolution under section 20140, the resolution is to be considered at the next general meeting that occurs more than 28 days after the notice is given.

 (2) The corporation must give all its members notice of the resolution at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a general meeting.

 (3) The corporation is responsible for the cost of giving members notice of the resolution.

 (4) The corporation need not give notice of the resolution if it is defamatory.

20150  Members’ statements to be distributed

 (1) Members may request an Aboriginal and Torres Strait Islander corporation to give to all its members a statement provided by the members making the request about:

 (a) a resolution that is proposed to be moved at a general meeting; or

 (b) any other matter that may be properly considered at a general meeting.

 (2) The request must be made by at least the required number of members under subsection (8).

 (3) The request must be:

 (a) in writing; and

 (b) signed by the members making the request; and

 (c) given to the corporation.

 (4) Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

 (5) After receiving the request, the corporation must distribute to all its members a copy of the statement at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of the general meeting.

 (6) The corporation is responsible for the cost of making the distribution.

 (7) The corporation need not comply with the request if the statement is defamatory.

 (8) The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

 (a) 5 members of the corporation; or

 (b) 10% of the members of the corporation.

 (9) The regulations may prescribe a different number of members for the purposes of applying paragraph (8)(a) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

 (10) The regulations may prescribe a different percentage for the purposes of applying paragraph (8)(b) to:

 (a) a particular Aboriginal and Torres Strait Islander corporation; or

 (b) a particular class of Aboriginal and Torres Strait Islander corporation.

Subdivision 201DHolding general meetings

20155  Purpose

  A general meeting must be held for a proper purpose.

20160  Time and place for general meeting

  A general meeting must be held at a reasonable time and place.

20165  Technology

  An Aboriginal and Torres Strait Islander corporation may hold a general meeting at 2 or more venues using any technology that gives the members as a whole a reasonable opportunity to participate.

Note: See section 57615 for the consequences of a member not being given a reasonable opportunity to participate.

20170  Quorum

Quorum (replaceable rule—see section 601)

 (1) If an Aboriginal and Torres Strait Islander corporation has 11 or more members, the quorum for a meeting of the corporation’s members is the lesser of:

 (a) 10 members; or

 (b) the greater of:

 (i) the number of members holding 10% of the voting rights; or

 (ii) 2 members.

Corporations with 10 members or less (replaceable rule—see section 601)

 (2) If an Aboriginal and Torres Strait Islander corporation has 10 members or less, the quorum for a meeting of the corporation’s members is 2 members.

Quorum to be present

 (3) The quorum must be present at all times during the meeting.

How to determine if quorum is present

 (4) In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than 1 proxy or representative, count only 1 of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once.

Note 1: For rights to appoint proxies, see section 20190.

Note 2: For body corporate representatives, see section 201110.

Adjourned meeting (replaceable rule—see section 601)

 (5) A meeting of the corporation’s members that does not have a quorum present within 1 hour after the time for the meeting set out in the notice of meeting is adjourned to the same time of the same day in the next week, and to the same place, unless the directors specify otherwise.

No quorum at resumed meeting (replaceable rule—see section 601)

 (6) If no quorum is present at the resumed meeting within 1 hour after the time for the meeting, the meeting is dissolved.

20175  Chairing general meeting (replaceable rule—see section 601)

 (1) The directors may elect an individual to chair general meetings.

 (2) The directors at a general meeting must elect an individual present to chair the meeting (or part of it) if an individual has not already been elected by the directors to chair it or, having been elected, is not available to chair it, or declines to act, for the meeting (or part of the meeting).

 (3) The members at a general meeting must elect a member present to chair the meeting (or part of it) if:

 (a) a chair has not previously been elected by the directors to chair the meeting; or

 (b) a previously elected chair is not available, or declines to act, for the meeting (or part of the meeting).

 (4) The chair must adjourn a general meeting if the members present with a majority of votes at the meeting agree or direct that the chair must do so.

20180  Auditor’s right to be heard at general meetings

 (1) If an Aboriginal and Torres Strait Islander corporation has an auditor, the auditor is entitled to attend any general meeting of the corporation.

Note: See section 33320 for when a financial report is required to be audited.

 (2) The auditor is entitled to be heard at the meeting on any part of the business of the meeting that concerns the auditor in the auditor’s capacity as auditor.

 (3) The auditor is entitled to be heard even if:

 (a) the auditor retires at the meeting; or

 (b) the meeting passes a resolution to remove the auditor from office.

 (4) The auditor may authorise a person in writing as the auditor’s representative for the purpose of attending and speaking at any general meeting.

Note: At an AGM, members may ask the auditor questions (see section 201170).

20185  Adjourned meetings

When resolution passed

 (1) A resolution passed at a general meeting resumed after an adjournment is passed on the day it was passed.

Business at adjourned meetings (replaceable rule—see section 601)

 (2) Only unfinished business is to be transacted at a general meeting resumed after an adjournment.

Subdivision 201EProxies

20190  Who may appoint a proxy (replaceable rule—see section 601)

Who may appoint proxy

 (1) A member of an Aboriginal and Torres Strait Islander corporation who is entitled to attend and cast a vote at a general meeting may appoint a person as the member’s proxy to attend and vote for the member at the meeting.

Proxy may be individual or a body corporate

 (2) The person appointed as the member’s proxy may be an individual or a body corporate.

Note: A body corporate may appoint a representative to exercise the powers that the body corporate may exercise as the member’s proxy (see section 201110).

 (3) The appointment may specify the proportion or number of votes that the proxy may exercise.

20195  Rights of proxies

Rights of proxies

 (1) A proxy appointed to attend and vote for a member has the same rights as the member:

 (a) to speak at the meeting; and

 (b) to vote (but only to the extent allowed by the appointment); and

 (c) join in a demand for a poll.

Proxy’s right to vote

 (2) An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a proxy is not entitled to vote on a show of hands.

Note: Even if the proxy is not entitled to vote on a show of hands, they may make or join in the demand for a poll.

Effect of member’s presence on proxy’s authority

 (3) An Aboriginal and Torres Strait Islander corporation’s constitution may provide for the effect that a member’s presence at a meeting has on the authority of a proxy appointed to attend and vote for the member. However, if the constitution does not deal with this, a proxy’s authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting.

Exercise of proxies

 (4) A person must not exercise proxies for more than the number of members:

 (a) prescribed in the regulations for the purposes of this subsection; or

 (b) worked out using the method prescribed in the regulations for the purposes of this subsection.

Penalty: 5 penalty units.

 (5) To avoid doubt, a contravention of subsection (4) does not affect the validity of the votes cast.

201100  Appointing a proxy

 (1) An appointment of a proxy is valid if it is signed, or otherwise authenticated in a manner prescribed by the regulations, by the member of the Aboriginal and Torres Strait Islander corporation making the appointment and contains the following information:

 (a) the member’s name and address;

 (b) the corporation’s name;

 (c) the proxy’s name or the name of the office held by the proxy;

 (d) the meetings at which the appointment may be used.

An appointment may be a standing one.

 (2) The regulations made for the purposes of subsection (1) may prescribe different requirements for the authentication of an appointment given to the corporation by different means (electronic or otherwise).

 (3) The corporation’s constitution may provide that an appointment is valid even if it contains only some of the information required by subsection (1).

 (4) An undated appointment is taken to have been dated on the day it is given to the corporation.

 (5) An appointment may specify the way the proxy is to vote on a particular resolution. If it does:

 (a) the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way; and

 (b) if the proxy has 2 or more appointments that specify different ways to vote on the resolution—the proxy must not vote on a show of hands; and

 (c) if the proxy is the chair—the proxy must vote on a poll, and must vote that way; and

 (d) if the proxy is not the chair—the proxy need not vote on a poll, but if the proxy does so, the proxy must vote that way.

If a proxy is also a member, this subsection does not affect the way that the person can cast any votes they hold as a member.

Note: An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a proxy is not entitled to vote on a show of hands (see subsection 20195(2)).

 (6) A person who contravenes subsection (5) commits an offence, but only if the person’s appointment as a proxy resulted from the corporation sending to members:

 (a) a list of persons willing to act as proxies; or

 (b) a proxy appointment form holding the person out as being willing to act as a proxy.

Penalty: 5 penalty units.

 (7) An offence against subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (8) An appointment does not have to be witnessed.

 (9) A later appointment revokes an earlier one if both appointments could not be validly exercised at the meeting.

201105  Proxy documents

Documents to be received by corporation before meeting

 (1) For an appointment of a proxy for a meeting of members of an Aboriginal and Torres Strait Islander corporation to be effective, the following documents must be received by the corporation at least 48 hours before the meeting:

 (a) the proxy’s appointment;

 (b) if the appointment is signed, or otherwise authenticated in a manner prescribed by regulations made for the purposes of subsection 201100(1), by the appointor’s attorney—the authority under which the appointment was signed or authenticated or a certified copy of the authority.

Documents received following adjournment of meeting

 (2) If a meeting of the corporation’s members has been adjourned, an appointment and any authority received by the corporation at least 48 hours before the resumption of the meeting are effective for the resumed part of the meeting.

Constitution or notice of meeting may provide for different notification period

 (3) The corporation’s constitution or the notice of meeting may reduce the period of 48 hours referred to in subsection (1) or (2).

201110  Body corporate representative

 (1) A body corporate may appoint an individual as a representative to exercise all or any of the powers the body corporate may exercise:

 (a) at meetings of an Aboriginal and Torres Strait Islander corporation’s members; or

 (b) at meetings of creditors; or

 (c) relating to resolutions to be passed without meetings; or

 (d) in the capacity of a member’s proxy appointed under section 20190.

The appointment may be a standing one.

 (2) The appointment may set out restrictions on the representative’s powers. If the appointment is to be by reference to a position held, the appointment must identify the position.

 (3) A body corporate may appoint more than 1 representative but only 1 representative may exercise the body’s powers at any one time.

 (4) Unless otherwise specified in the appointment, the representative may exercise, on the body corporate’s behalf, all of the powers that the body could exercise at a meeting or in voting on a resolution.

Note: For resolutions of members without meetings, see Division 204.

Subdivision 201FVoting at general meetings

201115  How many votes a member has (replaceable rule—see section 601)

 (1) At a general meeting, each member of an Aboriginal and Torres Strait Islander corporation has 1 vote, both on a show of hands and a poll.

Chair’s casting vote

 (2) The chair has a casting vote, and also, if he or she is a member, any vote he or she has as a member.

Note 1: The chair may be precluded from voting, for example, by a conflict of interest.

Note 2: For rights to appoint proxies, see section 20190.

201120  Objections to right to vote (replaceable rule—see section 601)

  A challenge to a right to vote at a general meeting:

 (a) may only be made at the meeting; and

 (b) must be determined by the chair, whose decision is final.

201125  How voting is carried out (replaceable rule—see section 601)

 (1) A resolution put to the vote at a general meeting must be decided on a show of hands unless a poll is demanded.

 (2) Before a vote is taken the chair must inform the meeting whether any proxy votes have been received and how the proxy votes are to be cast.

 (3) On a show of hands, a declaration by the chair is conclusive evidence of the result, provided that the declaration reflects the show of hands and the votes of the proxies received. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.

Note: Even though the chair’s declaration is conclusive of the voting results, the members present may demand a poll (see section 201130).

201130  Matters on which a poll may be demanded

 (1) Subject to subsection (2), at a general meeting, a poll may be demanded on any resolution.

 (2) An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a poll cannot be demanded on any resolution concerning:

 (a) the election of the chair of a meeting; or

 (b) the adjournment of a meeting.

 (3) A demand for a poll may be withdrawn.

201135  When a poll is effectively demanded

 (1) At a general meeting, a poll may be demanded by:

 (a) at least 5 members entitled to vote on the resolution; or

 (b) members with at least 5% of the votes that may be cast on the resolution on a poll; or

 (c) the chair.

Note: A proxy may join in the demand for a poll (see paragraph 20195(1)(c)).

 (2) An Aboriginal and Torres Strait Islander corporation’s constitution may provide that fewer members or members with a lesser percentage of votes may demand a poll.

 (3) The poll may be demanded:

 (a) before a vote is taken; or

 (b) before the voting results on a show of hands are declared; or

 (c) immediately after the voting results on a show of hands are declared.

201140  When and how polls must be taken (replaceable rule—see section 601)

 (1) At a general meeting, a poll demanded on a matter other than the election of a chair or the question of an adjournment must be taken when and in the manner the chair directs.

 (2) At a general meeting, a poll on the election of a chair or on the question of an adjournment must be taken immediately.

Subdivision 201GFirst general meeting and annual general meetings

201145  Corporation must hold first general meeting within 3 months of registration

 (1) An Aboriginal and Torres Strait Islander corporation must hold a general meeting of members within 3 months after the corporation is registered.

Penalty: 10 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.

201150  Corporation must hold AGM

 (1) An Aboriginal and Torres Strait Islander corporation must hold an AGM within 5 months after the end of its financial year.

Penalty: 10 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.

 (3) An AGM is to be held in addition to any other meetings held by an Aboriginal and Torres Strait Islander corporation in the year.

 (4) An Aboriginal and Torres Strait Islander corporation that has only 1 member is not required to hold an AGM under this section.

201155  Extension of time for holding AGM

 (1) An Aboriginal and Torres Strait Islander corporation may lodge an application with the Registrar to extend the period within which section 201150 requires the corporation to hold an AGM.

 (2) If the corporation applies before the end of the period within which the corporation would otherwise be required to hold an AGM, the Registrar may, by written notice to the corporation, extend the period. The Registrar must specify the period of the extension.

 (3) An Aboriginal and Torres Strait Islander corporation granted an extension under subsection (2) must hold its AGM within the extended period.

Penalty: 10 penalty units.

 (4) The Registrar may impose conditions on the extension and the corporation must comply with those conditions.

Penalty: 10 penalty units.

 (5) An offence against subsection (3) or (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

201160  Business of AGM

  The business of an AGM may include any of the following, even if not referred to in the notice of meeting:

 (a) the consideration of the reports that under Chapter 7 are required to be laid before the AGM;

 (b) the election of directors;

 (c) the appointment and remuneration of the auditor (if any).

201165  Questions and comments by members on corporation management at AGM

 (1) The chair of an AGM must allow a reasonable opportunity for the members as a whole at the meeting to ask questions about or make comments on the management of the corporation.

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.

201170  Questions by members of auditors at AGM

 (1) If an Aboriginal and Torres Strait Islander corporation’s auditor (if any) or the auditor’s representative is at an AGM, the chair of the meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask the auditor or the auditor’s representative questions relevant to:

 (a) the conduct of the audit; and

 (b) the preparation and content of the auditor’s report; and

 (c) the accounting policies adopted by the corporation in relation to the preparation of the financial statements; and

 (d) the independence of the auditor in relation to the conduct of the audit.

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.

Division 204Resolutions without a general meeting

2041  Circulating resolutions

 (1) An Aboriginal and Torres Strait Islander corporation may pass a resolution without a general meeting being held if all the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. Each member of a joint membership must sign.

 (2) Subsection (1) does not apply to a resolution to remove an auditor.

 (3) Separate copies of a document may be used for signing by members if the wording of the resolution and statement is identical in each copy.

 (4) The resolution is passed when the last member signs.

 (5) An Aboriginal and Torres Strait Islander corporation that passes a resolution under this section without holding a meeting satisfies any requirement in this Act:

 (a) to give members information or a document relating to the resolution—by giving members that information or document with the document to be signed; and

 (b) to lodge with the Registrar a copy of a notice of meeting to consider the resolution—by lodging a copy of the document to be signed by members; and

 (c) to lodge a copy of a document that accompanies a notice of meeting to consider the resolution—by lodging a copy of the information or documents referred to in paragraph (a).

 (6) The passage of the resolution satisfies any requirement in this Act, or the corporation’s constitution, that the resolution be passed at a general meeting.

 (7) This section does not affect any rule of law relating to the assent of members not given at a general meeting.

Note 1: Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 2205).

Note 2: A body corporate representative may sign a circulating resolution (see section 201110).

2045  Resolutions of 1 member corporations

 (1) An Aboriginal and Torres Strait Islander corporation that has only 1 member may pass a resolution by the member recording it and signing the record.

 (2) If this Act requires information or a document relating to the resolution to be lodged with the Registrar, that requirement is satisfied by lodging the information or document with the resolution that is passed.

Note 1: Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 2205).

Note 2: A body corporate representative may sign such a resolution (see section 201110).

Part 53Directors’ meetings

Division 209Introduction

2091  What this Part is about

This Part sets out the rules for directors’ meetings. Some of those rules may be modified or replaced by an Aboriginal and Torres Strait Islander corporation’s constitution. Others cannot be.

Division 212What are the rules concerning directors’ meetings?

2121  Constitution to provide for meetings

  The constitution of an Aboriginal and Torres Strait Islander corporation must specify how often directors’ meetings are to be held.

2125  Calling directors’ meetings (replaceable rule—see section 601)

  A directors’ meeting may be called by a director giving reasonable notice individually to every other director.

Note: A director who has appointed an alternate director may ask for the notice to be given to the alternate director (see subsection 24630(2)).

21210  Use of technology

  A directors’ meeting may be called or held using any technology consented to by all the directors. The consent may be a standing one. A director may only withdraw his or her consent within a reasonable period before the meeting.

21215  Chairing directors’ meetings (replaceable rule—see section 601)

 (1) The directors may elect a director to chair their meetings. The directors may determine the period for which the director is to be the chair.

 (2) The directors must elect a director present to chair a meeting, or part of it, if:

 (a) a director has not already been elected to chair the meeting; or

 (b) a previously elected chair is not available, or declines to act, for the meeting or the part of the meeting.

21220  Quorum at directors’ meetings

  The quorum for a directors’ meeting is a majority of the directors and the quorum must be present at all times during the meeting.

Note: For resolutions of 1 director Aboriginal and Torres Strait Islander corporations without meetings, see section 2155.

21225  Passing of directors’ resolutions (replaceable rule—see section 601)

 (1) A resolution of the directors must be passed by a majority of the votes cast by directors entitled to vote on the resolution.

 (2) The chair has a casting vote if necessary in addition to any vote he or she has as a director.

Division 215Resolutions and declarations without meetings

2151  Circulating resolutions of corporation with more than 1 director (replaceable rule—see section 601)

Resolutions

 (1) If an Aboriginal and Torres Strait Islander corporation has more than 1 director, the directors of the corporation may pass a resolution without a directors’ meeting being held if all the directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document.

Copies

 (2) Separate copies of a document may be used for signing by directors if the wording of the resolution and statement is identical in each copy.

When the resolution is passed

 (3) The resolution is passed when the last director signs.

Note: Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 2205).

2155  Resolutions and declarations of 1 director corporation

Resolutions

 (1) The director of an Aboriginal and Torres Strait Islander corporation that has only 1 director may pass a resolution by recording it and signing the record.

Declarations

 (2) The director of an Aboriginal and Torres Strait Islander corporation that has only 1 director may make a declaration by recording it and signing the record. Recording and signing the declaration satisfies any requirement in this Act that the declaration be made at a directors’ meeting.

Note: Passage of a resolution or the making of a declaration under this section must be recorded in the corporation’s minute books (see section 2205).

Part 54Minutes of meetings

Division 220Minutes of meetings

2201  What this Part is about

An Aboriginal and Torres Strait Islander corporation is required to keep minutes of its general meetings and its directors’ meetings and the passing of any resolutions without a meeting.

Minutes may be kept in writing or by means of an audio or video recording.

None of the rules in this Part may be modified or replaced by the corporation’s constitution.

2205  Minutes

 (1) An Aboriginal and Torres Strait Islander corporation must keep minute books in which it records within 1 month:

 (a) proceedings and resolutions of general meetings; and

 (b) proceedings and resolutions of directors’ meetings (including meetings of a committee of directors); and

 (c) resolutions passed by members without a meeting; and

 (d) resolutions passed by directors without a meeting; and

 (e) if the corporation has only 1 director—the making of declarations by the director.

Penalty: 10 penalty units.

Note: For resolutions and declarations without meetings, see Divisions 204 and 215.

 (2) The minutes of the whole, or a part, of the meeting may be kept:

 (a) in writing; or

 (b) by means of an audio, or audiovisual, recording.

 (3) If the minutes of the whole, or a part, of the meeting are kept by means of an audio, or audiovisual, recording of the meeting, the corporation must ensure that, on the recording:

 (a) each person attending the meeting states his or her name; and

 (b) if a person attending the meeting holds a proxy—the person states the name of the person for whom the person is acting as proxy.

Penalty: 10 penalty units.

 (4) If the minutes of the whole, or a part, of the meeting (the first meeting) are kept in writing, the corporation must ensure that either:

 (a) the chair of the meeting; or

 (b) the chair of the next meeting;

signs those minutes within a reasonable time after the first meeting.

Penalty: 10 penalty units.

 (5) If the minutes of the whole, or a part, of the meeting (the first meeting) are kept by means of an audio, or audiovisual, recording, the corporation must ensure that either:

 (a) the chair of the meeting; or

 (b) the chair of the next meeting;

signs a declaration under subsection (6) within a reasonable time after the first meeting.

Penalty: 10 penalty units.

 (6) The declaration under this subsection must:

 (a) identify the audio, or audiovisual, recording; and

 (b) if the recording is not a recording of the whole of the meeting—identify the part of the meeting that is recorded; and

 (c) declare that the recording constitutes the minutes of the meeting or that part of the meeting.

 (7) The corporation must ensure that minutes of the passing of a resolution without a meeting are signed by a director within a reasonable time after the resolution is passed.

Penalty: 10 penalty units.

 (8) The director of an Aboriginal and Torres Strait Islander corporation with only 1 director must sign the minutes of the making of a declaration by the director within a reasonable time after the declaration is made.

Penalty: 10 penalty units.

 (9) An Aboriginal and Torres Strait Islander corporation must keep its minute books at:

 (a) its registered office if it is registered as a large corporation; or

 (b) its document access address if it is registered as a small or medium corporation.

Penalty: 10 penalty units.

 (10) An offence against subsection (1), (3), (4), (5), (7), (8) or (9) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (11) A minute that is recorded and signed in accordance with this section is evidence of the proceeding, resolution or declaration to which it relates, unless the contrary is proved.

22010  Members’ access to minutes

 (1) An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must make available for inspection by members, at its registered office, the minute books for the meetings of its members and for resolutions of members passed without meetings. The books must be made available for inspection each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm.

Note: Failing to comply with this subsection is an offence under section 3761.

 (2) An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must make available for inspection by members, at its document access address, the minute books for the meetings of its members and for resolutions of members passed without meetings. The books must be made available within 7 days of a member’s written request for inspection.

Note: Failing to comply with this subsection is an offence under section 3761.

 (3) A corporation must make minutes available under subsections (1) and (2) free of charge.

Penalty: 5 penalty units.

 (4) A member of an Aboriginal and Torres Strait Islander corporation may ask the corporation in writing for a copy of:

 (a) any minutes of a meeting of the corporation’s members or an extract of the minutes; or

 (b) any minutes of a resolution passed by members without a meeting.

Note: The member may ask the corporation for an English translation under subsection 3765(3) if the minutes are not in the English language.

 (5) If the corporation does not require the member to pay for the copy, the corporation must send it:

 (a) within 14 days after the member asks for it; or

 (b) within any longer period that the Registrar approves.

Penalty: 5 penalty units.

 (6) If the corporation requires payment for the copy, the corporation must send it:

 (a) within 14 days after the corporation receives the payment; or

 (b) within any longer period that the Registrar approves.

The amount of any payment the corporation requires cannot exceed the prescribed amount.

Penalty: 5 penalty units.

 (7) An offence against subsection (3), (5) or (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Part 55Exemption from operation of this Chapter

Division 225Exemption from operation of this Chapter

2251  What this Part is about

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation from some or all of the provisions of this Chapter. The Registrar may do so on application or on his or her own volition.

2255  Exemption from the provisions of this Chapter

 (1) On an application made in accordance with subsection (2) in relation to an Aboriginal and Torres Strait Islander corporation, the Registrar may make a determination in writing exempting any of the following from the provisions of this Chapter specified in the Registrar’s determination:

 (a) the corporation itself;

 (b) the directors of the corporation.

Note: For the criteria for making orders under this section, see section 22520.

 (2) The application must:

 (a) specify the provisions in relation to which the exemption is being sought; and

 (b) be authorised by a resolution of the directors; and

 (c) be in writing and signed by a director; and

 (d) be lodged with the Registrar.

 (3) The determination may:

 (a) be expressed to be subject to conditions; and

 (b) be indefinite or limited to a specified period.

 (4) The Registrar may, in writing, revoke, vary or suspend the determination.

 (5) The Registrar must give the applicant written notice within 28 days of the making, revocation, variation or suspension of the determination.

 (6) A determination under subsection (1), or a revocation, variation or suspension under subsection (4), is not a legislative instrument.

22510  Registrar may make determination even if application is incomplete

  Despite subsection 2255(2), the Registrar may make a determination even if the application does not specify the provisions in relation to which the exemption is being sought.

22515  Registrar’s power to make determinations

 (1) The Registrar may determine in writing that:

 (a) a specified Aboriginal and Torres Strait Islander corporation or a specified class of Aboriginal and Torres Strait Islander corporation; and

 (b) the directors of a specified Aboriginal and Torres Strait Islander corporation or of a specified class of Aboriginal and Torres Strait Islander corporation (as the case may be);

are exempted from the provisions of this Chapter specified in the Registrar’s determination.

Note: For the criteria for making orders under this section, see section 22520.

 (2) The determination may:

 (a) be expressed to be subject to conditions; and

 (b) be indefinite or limited to a specified period.

 (3) The Registrar may, in writing, revoke, vary or suspend the determination.

 (4) Notice of the making, revocation, variation or suspension of a determination in relation to a specified class of Aboriginal and Torres Strait Islander corporation, or the directors of a specified class of Aboriginal and Torres Strait Islander corporation, must be published in the Gazette.

 (5) A determination under subsection (1) in relation to:

 (a) a specified class of Aboriginal and Torres Strait Islander corporation; or

 (b) the directors of a specified class of Aboriginal and Torres Strait Islander corporation;

is a legislative instrument.

 (6) A determination under subsection (1) in relation to:

 (a) a specified Aboriginal and Torres Strait Islander corporation; or

 (b) the directors of a specified Aboriginal and Torres Strait Islander corporation;

is not a legislative instrument.

22520  Criteria for determinations

 (1) In making a determination under section 2255 or 22515, the Registrar must be satisfied that the requirements of provisions of this Chapter would:

 (a) be inappropriate in the circumstances; or

 (b) impose unreasonable burdens.

Unreasonable burden

 (2) In deciding for the purposes of subsection (1) if the provisions impose an unreasonable burden on the corporation or corporations, the Registrar is to have regard to:

 (a) the expected costs of complying with the obligations; and

 (b) the expected benefits of having the corporation or corporations comply with the obligations; and

 (c) any practical difficulties that the corporation or corporations face in complying effectively with the obligations; and

 (d) any other matters that the Registrar considers relevant.

Chapter 6Officers

Part 61Introduction

Division 235Introduction

2351  What this Chapter is about

This Chapter deals with the officers of an Aboriginal and Torres Strait Islander corporation.

Part 62 deals with the appointment and remuneration and the cessation of appointment of directors.

Part 63 deals with the appointment of secretaries and contact persons.

Part 64 deals with the duties and powers of directors and other officers and employees.

Part 65 deals with the disqualification of persons from managing Aboriginal and Torres Strait Islander corporations.

Part 66 deals with related party transactions.

Part 67 deals with public information about officers of Aboriginal and Torres Strait Islander corporations.

Part 62Appointment, remuneration and cessation of appointment of directors

Division 240Introduction

2401  What this Part is about

This Part deals with the directors of an Aboriginal and Torres Strait Islander corporation.

Division 243 deals with the minimum and maximum number of directors that a corporation may have.

Divisions 246 and 249 deal with the appointment, resignation and removal of directors.

Division 252 deals with the remuneration of directors.

Division 243Number of directors

2431  Minimum number of directors

Corporations with 1 member

 (1) An Aboriginal and Torres Strait Islander corporation that has 1 member must have at least 1 director.

Corporations with 2 members

 (2) An Aboriginal and Torres Strait Islander corporation that has 2 members must have at least 2 directors.

Corporations with more than 2 members

 (3) An Aboriginal and Torres Strait Islander corporation that has more than 2 members must have at least 3 directors.

2435  Maximum number of directors

  An Aboriginal and Torres Strait Islander corporation must not have more than:

 (a) 12 directors; or

 (b) if the regulations prescribe a different number of directors for the purpose of this paragraph—that number of directors.

Note: An application may be made to exempt the corporation from the requirements of this section (see section 3105).

Division 246Appointment of directors

2461  Eligibility for appointment as a director

 (1) Only an individual who is at least 18 years of age may be appointed as a director of an Aboriginal and Torres Strait Islander corporation.

 (2) An individual who is disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 65 may only be appointed as a director of an Aboriginal and Torres Strait Islander corporation if the appointment is made:

 (a) with permission granted by the Registrar under section 27930; or

 (b) with leave granted by the Court under section 27935.

 (3) Unless an Aboriginal and Torres Strait Islander corporation’s constitution provides otherwise, the following may not be appointed as a director of the corporation:

 (a) an individual who is not a member of the corporation;

 (b) an individual who is not an Aboriginal and Torres Strait Islander person.

2465  Majority of director requirements

 (1) A majority of the directors of an Aboriginal and Torres Strait Islander corporation must be individuals who are Aboriginal and Torres Strait Islander persons.

 (2) A majority of the directors of the corporation must ordinarily reside in Australia.

 (3) A majority of the directors of the corporation must be members of the corporation.

 (4) A majority of the directors of the corporation must not be employees of the corporation.

 (5) If a person is performing a chief executive officer function in relation to the corporation, the person may be a director of the corporation but cannot chair the directors’ meetings. The person counts as an employee for the purposes of determining under subsection (4) whether a majority of directors are employees.

Note: For the meaning of chief executive officer function, see section 69485.

24610  Consent to act as director

 (1) An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as a director of the corporation before being appointed.

Penalty: 10 penalty units.

 (2) The corporation must keep the consent.

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.

24615  Corporation may appoint a director (replaceable rule—see section 601)

  An Aboriginal and Torres Strait Islander corporation may appoint a person as a director by resolution passed in general meeting.

24620  Directors may appoint other directors to make up a quorum (replaceable rule—see section 601)

Appointment by other directors

 (1) Subject to section 2435 (maximum number of directors), the directors of an Aboriginal and Torres Strait Islander corporation may appoint a person as a director.

 (2) A person can be appointed under subsection (1) in order to make up a quorum for a directors’ meeting even if the total number of directors of the corporation is not enough to make up that quorum.

Confirmation by next AGM

 (3) If a person is appointed under subsection (1), the corporation must confirm the appointment by resolution at the corporation’s next AGM. If the appointment is not confirmed, the person ceases to be a director of the corporation at the end of the AGM.

24625  Term of appointment

Directors appointed on registration (replaceable rule—see section 601)

 (1) If a director has been identified in the application for registration of an Aboriginal and Torres Strait Islander corporation as a director who is to be appointed for only one year, the director’s appointment ends at the first AGM that occurs more than one year after the date of the corporation’s registration.

Other directors

 (2) Subject to subsection (4), a director of an Aboriginal and Torres Strait Islander corporation must not be appointed for a period exceeding 2 years.

Note: An application may be made to exempt the directors of the corporation from the requirements of this subsection (see section 3105).

Director may be reappointed (replaceable rule—see section 601)

 (3) A director is eligible for reappointment.

Appointments continue to next general meeting

 (4) If the terms of appointment of all of the directors of an Aboriginal and Torres Strait Islander corporation expire so that there are no directors appointed at a particular time, the terms are extended until the next general meeting occurring after the expiry of the term of the director whose appointment was last to expire.

24630  Alternate directors (replaceable rule—see section 601)

 (1) With the other directors’ approval, a director may appoint an alternate to exercise some or all of the director’s powers for a specified period.

 (2) If the appointing director requests the Aboriginal and Torres Strait Islander corporation to give the alternate notice of directors’ meetings, the corporation must do so.

 (3) When an alternate exercises the director’s powers, the exercise of the powers is just as effective as if the powers were exercised by the director.

 (4) The appointing director may terminate the alternate’s appointment at any time.

 (5) An appointment or its termination must be in writing. A copy must be given to the corporation.

Note: The Registrar must be given notice of the appointment and termination of appointment of an alternate (see subsections 3045(3) and (6)).

24635  Effectiveness of acts by directors

 (1) An act done by a director is effective even if his or her appointment, or the continuance of the appointment, is invalid because the Aboriginal and Torres Strait Islander corporation or director did not comply with the corporation’s constitution or any provision of this Act.

 (2) Subsection (1) does not deal with the question whether an effective act by a director: