ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976
- Reprinted as at 31 October 1990 (HISTACT CHAP 618 #DATE 31:10:1990)
*1*The Aboriginal Councils and Associations Act 1976 as shown in this reprint
comprises Act No. 186, 1976 amended as indicated in the Tables below.
Table of Acts
Act
Number Date Date of Application,
and year of Assent commencement saving or
transitional
provisions
Aboriginal Councils and Associations Act 1976
186, 1976 15 Dec 1976 14 July 1978 (see Gazette
1978, No. S130)
Aboriginal Councils and Associations Amendment Act 1978
56, 1978 22`June`1978 14 July 1978 (see s. 2 and -
Gazette 1978, No. S130)
Statute Law Revision Act 1981
61, 1981 12 June S. 115: Royal Assent (a) -
1981
Companies (Miscellaneous Amendments) Act 1981
92, 1981 18 June Part I (ss. 1 and 2): Royal -
1981 Assent
Div. 1 of Part XI
(s. 36): 1 July 1981 (see
s. 2 (2) and Gazette 1981,
No. S118)
Remainder: 1 July 1982 (see
s. 2 (3) and Gazette 1982,
No. S124)
Companies and Securities Legislation (Miscellaneous Amendments) Act 1981
153, 1981 26 Oct 1981 Part XI (s. 100): 1 July -
1982 (see Gazette 1982 No. S124)
(b)
Statute Law (Miscellaneous Amendments) Act 1981
176, 1981 2 Dec 1981 Part II (ss. 3-7): 30 Dec -
1981 (c)
Statute Law (Miscellaneous Amendments) Act (No. 2) 1982
80, 1982 22 Sept Part III (ss. 5-9): Royal -
1982 Assent (d)
Australian Government Solicitor (Consequential Amendments) Act 1984
10, 1984 10 Apr 1984 1 July 1984 (see s. 2 (1) S. 4 (1)
and Gazette 1984, No. S231)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1984
165, 1984 25 Oct 1984 S. 3: 22 Nov 1984 (e) S. 6 (1)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1985
193, 1985 16 Dec 1985 S. 3: Royal Assent (f) S. 16
Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act
1988
99, 1988 2 Dec 1988 2 Dec 1988 -
Aboriginal and Torres Strait Islander Commission Act 1989
150, 1989 27 Nov 1989 5 Mar 1990 (see Gazette 1990, -
No. S48)
______________________________________________________________________________
__ (a) The Aboriginal Councils and Associations Act 1976 was amended by
section 115 only of the Statute Law Revision Act 1981, subsection 2 (1) of
which provides as follows:
'(1) Subject to this section, this Act shall come into operation on the day
on which it receives the Royal Assent.'
(b) The Aboriginal Councils and Associations Act 1976 was amended by Part XI
(section 100) only of the Companies and Securities Legislation (Miscellaneous
Amendments) Act 1981, subsection 2 (4) of which provides as follows:
'(4) Parts VII, VIII, IX, X and XI shall come into operation on the day on
which the Companies Act 1981 comes into operation.'
(c) The Aboriginal Councils and Associations Act 1976 was amended by Part II
(sections 3-7) only of the Statute Law (Miscellaneous Amendments) Act 1981,
subsection 2 (12) of which provides as follows:
'(12) The remaining provisions of this Act shall come into operation on the
twenty-eighth day after the day on which this Act receives the Royal Assent.'
(d) The Aboriginal Councils and Associations Act 1976 was amended by Part
III (sections 5-9) only of the Statute Law (Miscellaneous Amendments) Act (No.
2) 1982, subsection 2 (1) of which provides as follows:
'(1) Sections 1, 2, 166 and 195 and Parts III, VI, VII, XVI, XXXVI, XLIV,
LI, LIII, LIV, LXI and LXXVII shall come into operation on the day on which
this Act receives the Royal Assent.'
(e) The Aboriginal Councils and Associations Act 1976 was amended by section
3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984,
subsection 2 (1) of which provides as follows:
'(1) Subject to this section, this Act shall come into operation on the
twenty-eighth day after the day on which it receives the Royal Assent.'
(f) The Aboriginal Councils and Associations Act 1976 was amended by section
3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985,
subsection 2 (1) of which provides as follows:
'(1) Subject to this section, this Act shall come into operation on the day
on which it receives the Royal Assent.'
Table of Amendments
ad.=added or inserted am.=amended rep.=repealed rs.=repealed and substituted
______________________________________________________________________________
__ Provision affected
How affected
S. 3
am. No. 56, 1978; No. 92, 1981; No. 165, 1984; No. 150, 1989
S. 5
am. No. 61, 1981
Ss. 16, 17
am. No. 56, 1978
S. 19
am. No. 176, 1981; No. 80, 1982; No. 165, 1984
S. 22
am. No. 56, 1978
S. 24
rep. No. 56, 1978
S. 27
am. No. 56, 1978; am. No. 10, 1984
S. 29
am. No. 176, 1981; No. 165, 1984
S. 30
am. No. 80, 1982; No. 99, 1988
S. 33
am. No. 56, 1978
S. 38
am. No. 56, 1978; No. 61, 1981
S. 40
am. No. 56, 1978
S. 43
am. No. 56, 1978
S. 45
am. No. 56, 1978
S. 46
am. No. 56, 1978; No. 176, 1981; No. 165, 1984
S. 47
am. No. 56, 1978
S. 49
am. No. 165, 1984
S. 49A
ad. No. 165, 1984
S. 50
am. No. 61, 1981
S. 51
am. No. 176, 1981; No. 165, 1984
S. 52
am. No. 56, 1978
S. 59
am. No. 56, 1978; No. 61, 1981
S. 59A
ad. No. 165, 1984
S. 60
am. No. 165, 1984
S. 61
am. No. 56, 1978; No. 61, 1981; No. 165, 1984
S. 62
am. No. 56, 1978
rs. No. 92, 1981
am. No. 153, 1981
S. 64
am. No. 193, 1985
S. 66
rep. No. 165, 1984
S. 67
am. No. 56, 1978
rs. No. 92, 1981
am. No. 153, 1981
S. 78
am. No. 56, 1978; No. 80, 1982
rep. No. 165, 1984
S. 78A
ad. No. 80, 1982
rep. No. 165, 1984
S. 79
am. No. 56, 1978
S. 81A
ad. No. 153, 1981
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - TABLE OF PROVISIONS
TABLE
TABLE OF PROVISIONS
Section
PART I-PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART II-REGISTRAR OF ABORIGINAL CORPORATIONS
4. Registrar of Aboriginal Corporations
5. Functions and powers of Registrar
6. Acting appointments
7. Resignation
8. Registrar to have a seal
9. Delegation by Registrar
PART III-ABORIGINAL COUNCIL AREAS AND ABORIGINAL COUNCILS
10. Interpretation
11. Application for constitution of Aboriginal Council area
12. Explanation of application
13. Convening of meeting to discuss proposed Aboriginal Council
14. Variation of application
15. Withdrawal of application
16. Constitution of Aboriginal Council area on satisfaction of Registrar
17. Constitution of Aboriginal Council area in accordance with direction
of
Minister
18. Refusal of application
19. Establishment of Aboriginal Council
20. Functions of Aboriginal Council
21. First election of councillors of Aboriginal Council
22. First meeting
23. Rules to provide for certain matters
25. Election of new councillors
26. Area to be added to Aboriginal Council area
27. Amalgamation of 2 or more Aboriginal Council areas etc.
28. Exercise of powers etc.
29. Powers of Aboriginal Council generally
30. By-laws
31. Application of moneys by Council
32. Allowances for councillors
33. Alterations of functions
34. Alteration of functions not to affect existing rights and obligations
35. Filing and approval of alterations of Rules
36. Appointment of public officer etc.
37. Notification of appointment and change of public officer
38. Records to be kept and balance sheets and income and expenditure
statements prepared
39. Audit of rrecords and balance sheets
40. Registrar may request explanation
41. Liability of councillors
42. Staff
PART IV-INCORPORATED ABORIGINAL ASSOCIATIONS
43. Application for incorporation
44. Rights of members to share in pecuniary profits etc.
45. Registrar may issue certificate of incorporation
46. Incorporation of Aboriginal association
47. Rules of Incorporated Aboriginal Association
48. Liability of members of Incorporated Aboriginal Associations
49. Eligibility for membership of Incorporated Aboriginal Association
49A. Provision in rules for conferral of specified rights of membership on
persons not entitled to become members
50. Vesting of property in Incorporated Aboriginal Associations
51. Powers to borrow money and give securities
52. Notification of alteration of objects
53. Change of name
54. Filing and approval of alterations of Rules
55. Alteration of objects etc. does not affect existing rights and
obligations
56. Appointment of public officer etc.
57. Notice of appointment and change of public officers
58. Public officer to keep register of members
59. Records to be kept and balance sheets and income and expenditure
statements to be prepared
59A. Exemption from section 59 in certain circumstances
60. Audit of records and balance sheets
61. Registrar may request explanation
62. Application of provisions of Companies Act relating to compositions
with creditors
63. Winding up by Court
64. Voluntary winding up
65. Distribution of surplus assets in winding up
67. Application of provisions of Companies Act to winding up of
Incorporated Aboriginal Associations
PART V-INVESTIGATION AND JUDICIAL MANAGEMENT OF ABORIGINAL
CORPORATIONS
68. Investigation by Registrar
69. Offences
70. Entry on premises
71. Application for judicial management of Aboriginal corporation
72. Judicial management
73. Order declaring vacant offices of councillors etc.
74. Indemnity
75. Cancellation of certain contracts
76. Order for election of councillors etc.
77. Cancellation of judicial management order
PART VI-MISCELLANEOUS
79. Extension of time
80. Service on Aboriginal corporation etc.
81. Service on Registrar etc.
81A. Foreign companies for purposes of Companies Act not to include
Aboriginal corporations
82. Regulations
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - LONG TITLE
SECT
An Act to provide for the Constitution of Aboriginal Councils and the
Incorporation of Associations of Aboriginals and for matters connected
therewith
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART I
PART I-PRELIMINARY
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 1
Short title
SECT
1. This Act may be cited as the Aboriginal Councils and Associations Act
1976.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 2
Commencement
SECT
2. This Act shall come into operation on a date to be fixed by
Proclamation.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 3
Interpretation
SECT
3. In this Act, unless the contrary intention appears:
'Aboriginal' means a person who is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an indigenous inhabitant of the Torres Strait Islands;
'Aboriginal association' means an association, society or body:
(a) eligibility for membership of which is limited to Aboriginals and
spouses of Aboriginals;
(b) that has as members not less than 5 adult Aboriginals; and
(c) that is formed or carried on for any lawful object, including the
securing of a pecuniary profit to its members;
'Aboriginal Council' means an Aboriginal Council established by Part III;
'Aboriginal corporation' means an Aboriginal Council or an Incorporated
Aboriginal Association;
'adult Aboriginal' means an Aboriginal who has attained the age of 18
years;
'area', in relation to an Aboriginal Council, means the Aboriginal Council
area for which the Council is established by this Act;
'committee', in relation to an Aboriginal association, means the members
having the conduct of the affairs of the association;
'councillor' means a councillor of an Aboriginal Council;
'Court' means the Federal Court of Australia;
'Deputy Registrar' means a Deputy Registrar of Aboriginal Corporations
appointed under section 4;
'Incorporated Aboriginal Association' means an Aboriginal association
incorporated under Part IV;
'official address', in relation to the public officer of an Aboriginal
Corporation, means the address notified to the Registrar under section 37 or
57;
'public officer', in relation to an Aboriginal Corporation, means the public
officer of the corporation appointed in pursuance of section 36 or 56;
'Registrar' means the Registrar of Aboriginal Corporations appointed under
section 4;
'spouse', in relation to an Aboriginal, includes a person who, although not
legally married to the Aboriginal, is living with the Aboriginal as the
Aboriginal's spouse on a permanent and bona fide domestic basis;
'surplus assets', in relation to an Incorporated Aboriginal Association,
means the assets remaining on the winding up of the Association after payment
of the debts and liabilities of the Association and the cost, charges and
expenses of the winding up;
'unauthorized name', in relation to an Aboriginal association, means:
(a) a name that is, in the opinion of the Registrar, undesirable; or
(b) a name of a kind that the Ministerial Council for Companies and
Securities has, for the purposes of the Companies Act 1981, directed the
National Companies and Securities Commission not to accept for registration
under that Act.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART II
PART II-REGISTRAR OF ABORIGINAL CORPORATIONS
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 4
Registrar of Aboriginal Corporations
SECT
4.(1) For the purposes of this Act, there shall be a Registrar of Aboriginal
Corporations and such number of Deputy Registrars of Aboriginal Corporations
as the Minister determines from time to time.
(2) The Registrar shall be appointed by the Minister and has such duties,
functions and powers as are provided by this Act and by the regulations.
(3) The Deputy Registrars shall be appointed by the Minister for the purpose
of assisting the Registrar in carrying out his duties and functions.
(4) The Registrar and the Deputy Registrars shall be officers of the
Australian Public Service.
(5) The Registrar and the Deputy Registrars hold office, as such, during the
pleasure of the Minister.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 5
Functions and powers of Registrar
SECT
5.(1) In addition to the functions conferred by other provisions of this
Act, the functions of the Registrar are:
(a) to maintain 2 public registers, one being a Register of Aboriginal
Councils and the other a Register of Incorporated Aboriginal Associations;
(b) to advise adult Aboriginals on the procedures for the constitution of
Aboriginal Council areas and the establishment of Aboriginal Councils and for
the incorporation of Aboriginal associations; and
(c) to arbitrate in disputes as provided for by the Rules of an Aboriginal
corporation.
(2) The Registrar has power to do all things necessary or convenient to be
done for or in connexion with, or as incidental to, the performance of his
functions including, but without limiting the generality of the foregoing,
power to act as agent for an Aboriginal corporation.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 6
Acting appointments
SECT
6.(1) Where there is a vacancy in the office of the Registrar or of a Deputy
Registrar, the Minister may, by writing signed by him, appoint a person to act
as Registrar or Deputy Registrar, as the case may be, until the filling of the
vacancy, but a person so appointed shall not continue to act after the
expiration of the period of 12 months after the occurrence of the vacancy.
(2) Where the Registrar or a Deputy Registrar is, or is expected to be,
absent from duty or from Australia or unable, whether on account of illness or
otherwise, to perform the duties of his office, the Minister may, by writing
signed by him, appoint a person to act as Registrar or Deputy Registrar, as
the case may be, during the period during which the Registrar or Deputy
Registrar is so absent or so unable to perform the duties of his office.
(3) A person appointed to act as Registrar or Deputy Registrar in accordance
with this section has all the functions, powers and duties of the Registrar or
Deputy Registrar, as the case may be.
(4) A person appointed under this section may resign his appointment by
writing signed by him delivered to the Minister, but the resignation does not
have effect until it is accepted by the Minister.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 7
Resignation
SECT
7. The Registrar or a Deputy Registrar may resign his office by writing
signed by him delivered to the Minister, but the resignation does not have
effect until it is accepted by the Minister.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 8
Registrar to have a seal
SECT
8.(1) The Registrar shall have and use as the seal of his office a seal in
such form as the Minister, by notice in the Gazette, determines.
(2) All courts, judges and persons acting judicially shall take judicial
notice of:
(a) the signature of any person who holds or has held, or acts or has
acted
in, the office of Registrar and of the fact that that person holds or has
held, or is acting or has acted in, that office; and
(b) the seal of the Registrar.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 9
Delegation by Registrar
SECT
9.(1) The Registrar may, either generally or as otherwise provided by the
instrument of delegation, by writing signed by him, delegate to a Deputy
Registrar any of his powers under this Act, other than this power of
delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the
purposes of this Act, be deemed to have been exercised by the Registrar.
(3) A delegation under this section does not prevent the exercise of a power
by the Registrar.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART III
PART III-ABORIGINAL COUNCIL AREAS AND ABORIGINAL COUNCILS
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 10
Interpretation
SECT
10. In this Part, unless the contrary intention appears, 'application' means
an application made under section 11 but, where such an application has been
varied under section 14, means that application as so varied, and 'applicant'
has a corresponding meaning.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 11
Application for constitution of Aboriginal Council area
SECT
11.(1) Where 10 adult Aboriginals living in a particular area desire that an
Aboriginal Council be formed in respect of that area, they may apply in
writing, signed by each of them, to the Registrar for the constitution of that
area as an Aboriginal Council area with a view to the establishment of an
Aboriginal Council for that area.
(2) An application under subsection (1) shall state:
(a) the boundaries of the area proposed to be constituted as an Aboriginal
Council area;
(b) the functions of the proposed Aboriginal Council for that area, which
shall include the provision of a service or services to the Aboriginals living
in the area and may include any other function for the benefit of those
Aboriginals; and
(c) the names and addresses of the persons making the application.
(3) A reference in paragraph (2) (b) to a service shall be read as including
a reference to a service relating to any of the following matters:
(a) housing;
(b) health;
(c) sewerage;
(d) water supply;
(e) electricity supply;
(f) communications;
(g) education or training;
(h) relief work for unemployed persons;
(i) roads and associated works;
(j) garbage collection and disposal;
(k) welfare;
(l) community amenities.
(4) This section does not apply in relation to an area that consists of or
includes the whole of an existing Aboriginal Council area.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 12
Explanation of application
SECT
12.(1) Where the Registrar receives an application under section 11, he
shall:
(a) inform the adult Aboriginals living in the area to which the
application
relates of his receipt of the application;
(b) explain to those Aboriginals:
(i) the purpose of the application;
(ii) the boundaries of the area the subject of the application; and
(iii) the functions of the proposed Aboriginal Council for that
area;
and
(c) fix a time and place for a meeting to discuss the application and
notify
those Aboriginals of that time and place.
(2) The Registrar shall carry out his duties under subsection (1) by any
means that he considers appropriate.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 13
Convening of meeting to discuss proposed Aboriginal Council
SECT
13.(1) The Registrar shall convene a meeting in accordance with a
notification given under paragraph 12 (1) (c).
(2) The Registrar shall attend a meeting convened under subsection (1) and
shall endeavour to ascertain the opinions of the adult Aboriginals present at
the meeting regarding:
(a) the establishment of an Aboriginal Council for the area the subject of
the application or a part of that area; and
(b) the functions to be conferred on such a Council.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 14
Variation of application
SECT
14. The applicants may, having regard to the opinions expressed at a meeting
convened in pursuance of section 13, vary their application as they think fit
but not so as to extend the area to which the application relates.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 15
Withdrawal of application
SECT
15. The applicants may, by notice in writing served on the Registrar,
withdraw an application at any time before the constitution of an Aboriginal
Council area in accordance with the application.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 16
Constitution of Aboriginal Council area on satisfaction of Registrar
SECT
16.(1) Where:
(a) the Registrar is satisfied, with respect to an application under
section
11:
(i) that a substantial majority of adult Aboriginals living in the
area to which the application relates is in favour of the establishment of an
Aboriginal Council for the area with the functions set out in the application;
and
(ii) that, having regard to the needs and resources of the
Aboriginals
living in that area, the proposed Council could effectively perform those
functions;
(aa) the area to which the application relates is not, and does not
include,
an area to which local government extends, or to which it is proposed to
extend local government, by or under a law of a State or Territory;
(b) the area to which the application relates does not consist of, or
include, a part of an existing Aboriginal Council area; and
(c) the Registrar has agreed with the applicants on a name for the
proposed
Aboriginal Council area;
the Registrar may, by notice published in the Gazette, constitute that area as
an Aboriginal Council area under that name.
(2) A notice under subsection (1) shall specify the boundaries of the
Aboriginal Council area.
(4) Where, by reason of the circumstances of an application under section
11, the Registrar is of the view that he should not constitute the area to
which the application relates as an Aboriginal Council area under subsection
(1), he shall refer the application to the Minister for his direction.
(5) Where a part (in this subsection referred to as 'the prescribed part')
of an area to which an application under section 11 relates consists of a part
of an existing Aboriginal Council area, the Registrar shall, before referring
the application to the Minister for his direction, endeavour to ascertain the
opinions of the adult Aboriginals living in the prescribed part regarding the
establishment of an Aboriginal Council for the area to which the application
relates or a part of that area that includes the prescribed part and the
functions to be conferred on such a Council.
(6) A reference under subsection (4) shall be accompanied by:
(a) all relevant documents in the possession of the Registrar;
(b) a statement by the Registrar of the matters ascertained by him under
subsection 13 (2) and subsection (5) of this section; and
(c) any comments on the application that the Registrar may wish to make.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 17
Constitution of Aboriginal Council area in accordance with direction of
Minister
SECT
17.(1) Subject to subsection (3), where an application is referred to the
Minister under section 16, the Minister may, having regard to the customs and
wishes of the adult Aboriginals living in the area to which the application
relates or in a part of that area, direct the Registrar to constitute that
area or that part as an Aboriginal Council area and, if he does so, he shall
specify:
(a) the boundaries of the area to be so constituted;
(b) the name under which the area is to be so constituted; and
(c) the functions of the proposed Aboriginal Council for the area.
(2) Where an application referred to the Minister under section 16 relates
to an area that consists of, or includes, part of an existing Aboriginal
Council area, the Minister shall consult with any Aboriginal Council that may
be affected by the granting of the application (in this section referred to as
'the existing Council') and with any creditors of the existing Council whose
rights against it may be prejudiced by the granting of the application and may
enter into:
(a) such agreements with the existing Council with respect to the transfer
to the Council for the Aboriginal Council area proposed to be constituted (in
this section referred to as 'the new Council' ) of assets of the existing
Council; and
(b) such agreements with the creditors of the existing Council with
respect
to the transfer to the new Council of liabilities of the existing Council to
its creditors;
as the Minister considers are required to ensure that, if the application is
granted:
(c) the existing Council will be able effectively to carry out its
functions
with respect to the area that will remain to it;
(d) the new Council will be able effectively to carry out its functions
with
respect to the area constituted in pursuance of the application; and
(e) the rights of those first-mentioned creditors will not be so
prejudiced.
(3) The Minister shall not give a direction under subsection (1) with
respect to an application to which subsection (2) applies unless he has
entered into agreements under subsection (2) or is otherwise satisfied that,
if the application is granted, the existing Council and the new Council will
be able to carry out their respective functions in their respective areas and
that the rights of creditors of the existing Council will not be prejudiced.
(4) Where an application referred to the Minister under section 16 relates
to an area that is, or includes, an area to which local government extends, or
to which it is proposed to extend local government, by or under a law of a
State or Territory, the Minister shall not direct the Registrar under
subsection (1) to constitute the area to which the application relates, or a
part of that area, as an Aboriginal Council area unless the Minister has
consulted with the person responsible for administering local government in
the relevant State or Territory, or in each relevant State or Territory, that
is to say:
(a) in the case of a State-the Minister of State for the State who is
responsible, or principally responsible, for the administration of matters
relating to local government in that State; or
(b) in the case of a Territory-the person holding an executive office who
is
responsible, or principally responsible, for the administration of matters
relating to local government in that Territory.
(5) Where the Registrar receives a direction under subsection (1), he shall,
by notice published in the Gazette, constitute the area to which the direction
relates as an Aboriginal Council area under the name specified in the
direction.
(6) A notice under subsection (5) shall specify the boundaries of the
Aboriginal Council area.
(7) By force of this subsection, upon the publication of a notice under
subsection (5) constituting an Aboriginal Council area:
(a) any part of the area thus constituted that was, immediately before
being
so constituted, part of an existing Aboriginal Council area, ceases to be part
of that last-mentioned area;
(b) any assets the subject of agreements under paragraph (2) (a) cease to
be
vested in the Aboriginal Council in which they were vested immediately before
publication of the notice and become vested in the Aboriginal Council that is,
in accordance with section 19, established by this Act for the area so
constituted; and
(c) an Aboriginal Council that was, immediately before the publication of
the notice, liable to pay and discharge any liabilities the subject of
agreements under paragraph (2) (b) ceases to be so liable and the Aboriginal
Council that is, in accordance with section 19, established by this Act for
the area constituted under subsection (5) becomes liable to pay and discharge
those liabilities.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 18
Refusal of application
SECT
18. If the Minister does not give a direction under section 17 with respect
to an application, he shall direct the Registrar to refuse the application and
to inform the applicants of the refusal and of the reasons for the refusal,
being reasons set out by the Minister in the direction.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 19
Establishment of Aboriginal Council
SECT
19.(1) On the constitution of an Aboriginal Council area under section 16,
17 or 27, there is established by this Act an Aboriginal Council for that
area.
(2) An Aboriginal Council shall be known as the Aboriginal Council for the
Aboriginal Council area for which it is established.
(3) An Aboriginal Council:
(a) is a body corporate with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(e) may sue and be sued in its corporate name.
(4) All courts, judges and persons acting judicially shall take judicial
notice of the seal of an Aboriginal Council affixed to a document and shall,
unless the contrary is proved, presume that it was duly affixed.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 20
Functions of Aboriginal Council
SECT
20.(1) The functions of an Aboriginal Council are:
(a) where the area of the Council was constituted under section 16-the
functions specified in the application on the basis of which that area was so
constituted;
(b) where the area of the Council was constituted under section 17-the
functions specified in the direction in compliance with which that area was so
constituted; or
(c) where the area of the Council was constituted under section 27-the
functions specified in the recommendation by virtue of which that area was so
constituted.
(2) There shall be included in the notice published under section 16, 17 or
27 with respect to the constitution of the area of an Aboriginal Council a
statement of the functions conferred on the Council by subsection (1).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 21
First election of councillors of Aboriginal Council
SECT
21.(1) As soon as practicable after the establishment of an Aboriginal
Council the Registrar shall conduct an election of councillors of the
Council.
(2) For the purpose of conducting an election under this section, the
Registrar shall, subject to the regulations:
(a) inform the adult Aboriginals living in the area of the Aboriginal
Council of his intention to conduct the election;
(b) fix the number of councillors to be elected and notify those
Aboriginals
of that number;
(c) determine the manner in which the election is to be conducted and
explain to those Aboriginals the manner in which the election is to be
conducted; and
(d) fix the date or dates, and the place or places, that are relevant to
the
conduct of the election and notify those Aboriginals of that date or dates and
that place or places.
(3) In fixing the number of councillors to be elected at an election under
this section and in determining the manner in which the election is to be
conducted, the Registrar shall have regard to the views of the adult
Aboriginals living in the area of the Aboriginal Council.
(4) A person is not entitled to be a candidate, or to vote, in an election
of councillors of an Aboriginal Council under this section unless:
(a) he is an Aboriginal; and
(b) at the date, or the earlier or earliest of the dates, fixed for the
purposes of the election:
(i) he had attained the age of 18 years; and
(ii) he was living in the area of the Council.
(5) If there is a dispute whether a particular person has been elected as a
councillor in an election held under this section, the Registrar shall inquire
into the matter and determine whether that person or another person has been
elected as a councillor.
(6) At the conclusion of an election under this section, the Registrar shall
publish in the Gazette a notice setting out the results of the election and
shall take such other action (if any) as he considers appropriate to inform
the adult Aboriginals living in the area of the Aboriginal Council of those
results.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 22
First meeting
SECT
22.(1) The Registrar shall, as soon as practicable after the conclusion of
an election, under section 21, of councillors of an Aboriginal Council,
convene and preside over the first meeting of the Council after that election
for the purpose of:
(a) adopting the Rules of the Council; and
(b) electing a Chairman of the Council.
(2) A quorum for a meeting of an Aboriginal Council under this section is a
number of councillors that is not less than two-thirds of the total number of
councillors constituting the Council.
(3) A question arising at a meeting of an Aboriginal Council under this
section shall be decided by a majority of the votes of the councillors present
and voting and, in the event of the votes being equal, the Registrar has a
casting vote.
(4) If:
(a) a motion for the adoption of the Rules of the Council has been passed;
and
(b) the Registrar is of the opinion that the Rules are inconsistent with
this Act;
the Registrar shall explain to the meeting his reasons for considering that
the Rules are inconsistent with this Act and shall, thereupon, rescind the
motion.
(5) Where a motion for the adoption of the Rules of the Council has been
rescinded under subsection (4), a further motion for the adoption of other
Rules of the Council may be moved.
(6) Where Rules of the Council that are not inconsistent with this Act have
been adopted, the Rules thereupon take effect and the Registrar shall obtain,
and keep in his office, a copy of those Rules.
(7) The Registrar may adjourn a meeting of an Aboriginal Council under this
section from time to time for the purpose of enabling further consideration of
any question before the meeting.
(8) If the Registrar is satisfied that Rules of the Council that are not
inconsistent with this Act will not be adopted at a meeting under this
section, he shall adjourn the meeting.
(8A) Where:
(a) the Registrar adjourns a meeting of an Aboriginal Council under
subsection (8); and
(b) the Minister is satisfied that Rules of the Council that are not
inconsistent with this Act will not be adopted at that meeting if it resumes;
the Minister may declare the election of the councillors of that Council to be
void, and that declaration shall have effect accordingly and the Registrar
shall proceed to conduct a fresh election in accordance with section 21.
(9) A motion for the election of a Chairman of the Aboriginal Council shall
not be moved until Rules of the Council that are not inconsistent with this
Act have been adopted and, on a Chairman being elected, the Registrar shall
cease to preside over, or to take any further part in, the meeting.
(10) In this section, 'this Act' includes the regulations.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 23
Rules to provide for certain matters
SECT
23.(1) Subject to this Act and the regulations, the Rules of an Aboriginal
Council shall make provision for and in relation to:
(a) the manner of election of councillors;
(b) the term of office of councillors (not being a term in excess of 3
years) and the procedure for removal from office;
(c) the creation of the executive offices of the Council and the procedure
for filling those offices;
(d) the procedure for the conduct of meetings of the Council;
(e) the manner in which the funds of the Council are to be managed;
(f) the procedure for settling disputes between the Council and
Aboriginals
living in the area of the Council; and
(g) the method of altering the Rules of the Council, whether by making new
Rules or by varying or rescinding Rules in force;
and may make provision, not contrary to law, for and in relation to any other
matter.
(2) The Rules of an Aboriginal Council shall comply with any requirements of
the regulations.
(3) The Rules of an Aboriginal Council with respect to any matter may be
based on Aboriginal custom.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 25
Election of new councillors
SECT
25.(1) Within 3 months before the date on which the terms of office of thhe
councillors constituting an Aboriginal Council (in this section referred to as
'the retiring councillors') expire, the Registrar shall conduct, in accordance
with the Rules of the Council, an election of new councillors.
(2) For the purpose of conducting an election under this section, the
Registrar shall:
(a) inform the adult Aboriginals living in the area of the Aboriginal
Council of his intention to conduct the election;
(b) notify those Aboriginals of the number of councillors to be elected;
(c) explain to those Aboriginals the manner of conducting the election
that
is specified in the Rules of the Aboriginal Council; and
(d) fix the date or dates, and the place or places, that are relevant to
the
conduct of the election and notify those Aboriginals of that date or dates and
that place or places.
(3) A person is not entitled to be a candidate, or to vote, in an election
of councillors of an Aboriginal Council under this section unless:
(a) he is an Aboriginal; and
(b) at the date, or the earlier or earliest of the dates, fixed for the
purposes of the election:
(i) he had attained the age of 18 years; and
(ii) he was living in the area of the Council.
(4) A person elected as a new councillor under this section takes office on
the expiration of the term of office of the retiring councillors.
(5) At the conclusion of an election under this section, the Registrar shall
publish in the Gazette a notice setting out the results of the election and
shall take such other action (if any) as he considers appropriate to inform
the adult Aboriginals living in the area of the Aboriginal Council of those
results.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 26
Area to be added to Aboriginal Council area
SECT
26.(1) Where the Registrar is satisfied:
(a) that a substantial majority of adult Aboriginals living in an area (in
this section referred to as 'the additional area') is in favour of the
addition of that area to the area (in this section referred to as 'the
original area') of an Aboriginal Council;
(b) that a substantial majority of adult Aboriginals living in the
original
area is in favour of the addition of the additional area to the original
area;
(c) that, having regard to the needs and resources of Aboriginals living
in
both areas, the Aboriginal Council for the original area could effectively
carry out its functions with respect to both areas; and
(d) where the additional area consists of or includes a part of the area
of
another Aboriginal Council-that, having regard to the needs and resources of
Aboriginals living in the remaining part of the area of that other Aboriginal
Council, that other Aboriginal Council could effectively carry out its
functions in that remaining part;
the Registrar may make a recommendation to the Minister that the additional
area be added to the original area.
(2) Where the additional area that, in accordance with a recommendation
under subsection (1), is to be added to the area of an Aboriginal Council (in
this section referred to as 'the first Council') consists of or includes a
part of the area of another Aboriginal Council (in this section referred to as
'the second Council'), the Minister shall consult with the second Council and
with any creditors of the second Council whose rights against it may be
prejudiced if the recommendation is given effect to and may enter into:
(a) such agreements with the second Council with respect to the transfer
to
the first Council of assets of the second Council; and
(b) such agreements with the creditors of the second Council with respect
to
the transfer to the first Council of liabilities of the second Council to its
creditors;
as the Minister thinks are required to ensure that, if the recommendation is
given effect to:
(c) the second Council will be able effectively to carry out its functions
with respect to the area that will remain to it;
(d) the first Council will be able effectively to carry out its functions
with respect to both the original area and the additional area, regarded as
one area; and
(e) the rights of those first-mentioned creditors will not be so
prejudiced.
(3) Where:
(a) the Minister approves a recommendation made under subsection (1); and
(b) where the additional area to which the recommendation relates is an
area
referred to in subsection (2)-the Minister has entered into agreements under
that subsection or is otherwise satisfied that, if the recommendation is given
effect to, the first Council and the second Council will be able to carry out
their respective functions in their respective areas and that the rights of
creditors of the second Council will not be prejudiced;
the Minister shall, by notice published in the Gazette, re-define the
boundaries of the original area so as to add to it the additional area.
(4) By force of this subsection, upon the publication of a notice under
subsection (3) redefining the area of an Aboriginal Council:
(a) any part of the area of another Aboriginal Council that is included in
the redefined area of the first-mentioned Aboriginal Council ceases to be part
of the area of that other Aboriginal Council;
(b) any assets the subject of agreements under paragraph (2) (a) cease to
be
vested in the Aboriginal Council in which they were vested immediately before
the publication of the notice and become vested in the first-mentioned
Aboriginal Council; and
(c) an Aboriginal Council that was, immediately before the publication of
the notice, liable to pay and discharge any liabilities the subject of
agreements under paragraph (2) (b), ceases to be so liable and the
first-mentioned Aboriginal Council becomes liable to pay and discharge those
liabilities.
(5) This section does not apply in circumstances where the area to be added
to the area of an Aboriginal Council consists of or includes the whole of an
existing Aboriginal Council area.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 27
Amalgamation of 2 or more Aboriginal Council areas etc.
SECT
27.(1) Where the Registrar is satisfied:
(a) that a substantial majority of adult Aboriginals living in each of 2
or
more Aboriginal Council areas:
(i) is in favour of the amalgamation of those areas to form 1
Aboriginal Council area and the establishment of an Aboriginal Council for
that area;
(ii) is agreed on the functions to be performed by the proposed
Aboriginal Council; and
(iii) is agreed on an appropriate name for the proposed Aboriginal
Council area;
(b) that the proposed Aboriginal Council area is an appropriate area for
the
operation of an Aboriginal Council having the functions proposed; and
(c) that, having regard to the needs and resources of the Aboriginals
living
in the proposed Aboriginal Council area, the proposed Aboriginal Council could
effectively perform the proposed functions;
the Registrar may make a recommendation to the Minister that effect be given
to the views of those majorities.
(2) Where a recommendation is made to the Minister under subsection (1), the
Minister, if he is satisfied that it is proper so to do, may, by notice
published in the Gazette, constitute the proposed Aboriginal Council area as
an Aboriginal Council area under the name specified in the recommendation.
(3) By force of this subsection, on the publication of a notice under
subsection (2):
(a) the Aboriginal Council areas included in the newly constituted
Aboriginal Council area cease to be constituted as Aboriginal Council areas
and the Aboriginal Councils for those areas (in this section referred to as
'the former Councils') cease to exist;
(b) all rights, property and assets that, immediately before the date of
that publication, were vested in the former Councils are vested in the
Aboriginal Council for the Aboriginal Council area constituted by the notice
(in this section referred to as 'the new Council'); and
(c) the new Council becomes liable to pay and discharge all the duties,
liabilities and obligations of the former Councils, being the duties,
liabilities and obligations that existed immediately before that date.
(4) Any agreement or instrument subsisting immediately before the date of
publication of a notice under subsection (2) to which any of the former
Councils was a party has effect, on and after that date, as if:
(a) the new Council were substituted for that former Council as a party to
the agreement or instrument; and
(b) any reference in the agreement or instrument to that former Council
were
(except in relation to matters that occurred before that date) a reference to
the new Council.
(5) Where:
(a) the title to an estate or interest in land held by any of the former
Councils is, by virtue of subsection (3), vested in the new Council; and
(b) that estate or interest is registered in the name of that former
Council
in the Register Book kept under a law relating to the transfer of land in
force in the State or Territory in which the land is situated;
the Secretary to the Attorney-General's Department or a person authorized
under subsection 55E (4) of the Judiciary Act 1903 may lodge with the
Registrar-General, Registrar of Titles or other proper officer of the State or
Territory a certificate signed by the Secretary or by a person so authorized
certifying that that estate or interest is so vested and the officer with whom
the certificate is lodged may deal with and give effect to the certificate as
if it were a grant, conveyance, memorandum or instrument of transfer of that
estate or interest duly executed under the laws in force in the State or
Territory.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 28
Exercise of powers etc.
SECT
28. The exercise of the powers and the performance of the functions of an
Aboriginal Council shall not be affected by reason only:
(a) of there being a vacancy in the office of a councillor;
(b) of there being a defect in the election of a councillor; or
(c) of any person having acted in the office of councillor when
disqualified
from holding that office.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 29
Powers of Aboriginal Council generally
SECT
29. Subject to this Act, an Aboriginal Council may do all things that are
necessary or convenient to be done for or in connexion with the performance of
its functions and, in particular, may:
(a) raise or borrow moneys on such terms, and in such manner, as it thinks
fit;
(b) secure the repayment of moneys so raised or borrowed, or the payment
of
a debt or liability of the Council, by giving a mortgage, charge or other
security upon or over all or any of the property of the Council;
(c) invest moneys in any manner that it thinks fit; and
(d) receive and disburse moneys provided to it.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 30
By-laws
SECT
30.(1) Subject to this Act, an Aboriginal Council may make by-laws, not
inconsistent with any other law in force in the area of the Council, for
purposes connected with its functions.
(2) A by-law made under subsection (1) may fix a charge for a service
provided or made available by the Council for Aboriginals living in the area
of the Council, and may make provision with respect to the payment of that
charge.
(3) The amount of the charge referred to in subsection (2) may, if unpaid,
be recovered by the Council by action in a court of competent jurisdiction
from an Aboriginal to whom the service to which the charge relates has been
provided or made available.
(4) A by-law has no effect unless it has been approved by the Minister.
(5) Where the Minister approves any by-laws, he shall:
(a) cause the by-laws to be notified in the Gazette; and
(b) cause a copy of the by-laws to be laid before each House of the
Parliament within 15 sitting days of that House after the giving of his
approval.
(6) By-laws made under this section take effect from the day on which they
are notified in the Gazette or, where a later date is specified in the
by-laws, from the date specified.
(7) If a copy of any by-laws is not laid before each House of the Parliament
in accordance with subsection (5), the by-laws shall be void and of no
effect.
(7A) Where a copy of any by-laws has been laid before a House of the
Parliament in accordance with subsection (5) of this section, the provisions
of section 48 (other than subsections (1), (2) and (3)) and sections 48A, 48B,
49 and 50 of the Acts Interpretation Act 1901 apply in relation to those
by-laws as if references in those provisions to regulations were references to
by-laws.
(8) The Registrar shall use his best endeavours to ensure that the by-laws
of an Aboriginal Council are made known to adult Aboriginals in the area of
the Aboriginal Council.
(9) A by-law does not apply in relation to a person who is not an
Aboriginal.
(10) The by-laws may provide that any contravention of a by-law is an
offence punishable, upon conviction, by a fine not exceeding $20.
(11) In proceedings for an offence referred to in subsection (10) it is a
defence if the person charged proves that the by-law to which the offence
relates had not been brought to his attention.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 31
Application of moneys by Council
SECT
31. The moneys of an Aboriginal Council shall be applied only:
(a) in payment or discharge of the expenses, charges and obligations
incurred or undertaken by the Council in the performance of its functions, or
the exercise of its powers, under this Act;
(b) in the payment of any allowances payable to councillors under this
Act;
and
(c) in the making of other payments authorized by this Act.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 32
Allowances for councillors
SECT
32. A councillor is entitled to be paid such allowances with respect to his
expenses as a councillor as are provided for by the Rules of the Aboriginal
Council.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 33
Alterations of functions
SECT
33. (1) An Aboriginal Council may request the Registrar to alter the
functions of the Council in the manner specified in the request.
(2) Where the Registrar is satisfied, with respect to a request under
subsection (1):
(a) that a substantial majority of adult Aboriginals living in the area of
the Aboriginal Council is in favour of the alteration specified in the
request;
(b) that, having regard to the needs and resources of the Aboriginals
living
in that area, the Council could effectively perform the functions as proposed
to be altered in accordance with the request; and
(c) that the functions as proposed to be altered in accordance with the
request include at least 1 function in the nature of the provision of a
service to the Aboriginals living in that area;
the Registrar shall, by notice published in the Gazette, alter the functions
of the Council in accordance with the request.
(3) An alteration of the functions of an Aboriginal Council under subsection
(2) takes effect on the date of publication of the notice.
(4) Where the Registrar is not satisfied as required by subsection (2) with
respect to a request under subsection (1), he shall refuse the request and
shall notify the Aboriginal Council, in writing, accordingly.
(5) Where the Registrar refuses to alter the functions of an Aboriginal
Council in accordance with a request under subsection (1), the Council may
request the Minister to alter the functions of the Council in the manner
specified in the request.
(6) Where the Minister, having regard to the matters specified in paragraphs
(2) (a), (b) and (c), is satisfied that the request should be complied with,
he shall, by notice published in the Gazette, alter the functions of the
relevant Aboriginal Council in accordance with the request.
(7) An alteration of the functions of an Aboriginal Council under subsection
(6) takes effect on the date of publication of the notice.
(8) Where the Minister is not satisfied that the request should be complied
with, he shall refuse the request and shall notify the Aboriginal Council in
writing, accordingly.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 34
Alteration of functions not to affect existing rights and obligations
SECT
34. An alteration of the functions of an Aboriginal Council does not affect
any right, liability or obligation of the Council or of any person, or any
legal proceeding existing or pending immediately before the alteration took
place.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 35
Filing and approval of alterations of Rules
SECT
35.(1) Where an Aboriginal Council alters the Rules of the Council the
public officer of the Council shall, within 6 weeks after the making of the
alteration, file with the Registrar a copy of the alteration.
Penalty: $50.
(2) The Registrar shall consider an alteration filed under subsection (1)
and shall:
(a) if he is satisfied that the Rules of the Aboriginal Council as
proposed
to be altered are not inconsistent with this Act or the regulations-approve
the alteration; or
(b) if he is not so satisfied-refuse to approve the alteration.
(3) The Registrar shall notify the public officer of the Aboriginal Council,
in writing, of his approval, or his refusal of approval, of an alteration
filed by the public officer under subsection (1).
(4) An alteration referred to in subsection (1) does not take effect unless
and until approved by the Registrar under subsection (2).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 36
Appointment of public officer etc.
SECT
36.(1) An Aboriginal Council shall, within 3 weeks after the first meeting
of the Council, appoint a person to be the public officer of the Council and
determine an official address for the person from time to time holding the
office and, if that office at any time becomes vacant, shall, within 3 weeks
after it becomes vacant, appoint a person to fill that vacancy.
(2) The public officer of an Aboriginal Council holds office during the
pleasure of the Council.
(3) The public officer of an Aboriginal Council may resign his office by
writing signed by him delivered to the Chairman of the Council but the
resignation does not have effect until it is accepted by the Chairman of the
Council.
(4) An Aboriginal Council shall terminate the appointment of the public
officer of the Council if he becomes bankrupt, applies to take the benefit of
a law for the relief of bankrupt or insolvent debtors or compounds with his
creditors.
(5) Where the Registrar considers that the place of the official address of
the public officer of an Aboriginal Council is not an appropriate place for
the performance of the duties of the public officer under this Act, he may
direct the Council to determine another official address and to notify him of
the address so determined and the Council shall obey that direction.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 37
Notification of appointment and change of public officer
SECT
37.(1) An Aboriginal Council shall, within 3 weeks after the appointment of
a public officer, serve on the Registrar a notice in writing setting out the
full name and official address of the public officer.
(2) Where an Aboriginal Council changes the official address of its public
officer, it shall, within 3 weeks after the change, serve on the Registrar a
notice in writing of the change.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 38
Records to be kept and balance sheets and income and expenditure statements
prepared
SECT
38.(1) An Aboriginal Council shall cause to be kept proper accounts and
records of the transactions and affairs of the Council and shall do all things
necessary to ensure that all payments out of the moneys of the Council are
correctly made and properly authorized and that adequate control is maintained
over the assets of, or in the custody of, the Council and over the incurring
of liabilities by the Council.
(2) An Aboriginal Council shall, as soon as practicable after each 30 June,
cause to be prepared a balance sheet setting out the assets and liabilities of
the Council as at that 30 June and an income and expenditure statement giving
a true and fair view of the income and expenditure of the Council for the
financial year ending on that 30 June.
(3) An Aboriginal Council shall, as soon as practicable after a balance
sheet and income and expenditure statement has been prepared under subsection
(2), cause a person having the prescribed qualifications:
(a) to examine whether the balance sheet and income and expenditure
statement is based on proper accounts and records and is in agreement with
those accounts and records; and
(b) to furnish to the Council a report of the results of that examination
drawing attention to any irregularity in the financial affairs of the Council
disclosed by that examination.
(4) The public officer of an Aboriginal Council shall, within 6 weeks after
the furnishing to the Council of a report under subsection (3) with respect to
a balance sheet and income and expenditure statement prepared under subsection
(2), file with the Registrar a copy of that balance sheet and income and
expenditure statement and a copy of that report.
Penalty for any contravention of this subsection: $50.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 39
Audit of records and balance sheets
SECT
39.(1) The Registrar may, at any time, cause a person having the prescribed
qualifications to inspect and audit the accounts and records caused to be kept
by an Aboriginal Council in pursuance of subsection 38 (1) and to furnish to
him a report of the results of that inspection and audit drawing attention to
any irregularity in the financial affairs of the Council disclosed by that
inspection and audit.
(2) The Registrar shall, before an inspection and audit under subsection (1)
is commenced, by notice in writing served on the public officer of the
Aboriginal Council concerned, inform it that such an inspection and audit will
be carried out and name the person whom he has engaged for the purpose.
(3) Where a notice is served on the public officer of an Aboriginal Council
under subsection (2), the Council shall ensure that the person named in the
notice or a person authorized by that person has, for the purposes of the
inspection and audit referred to in the notice, full and free access to all
accounts, records, documents and papers of the Council relevant directly or
indirectly to the payment of money by the Council or to the acquisition,
receipt, custody or disposal of assets by the Council.
(4) A person named in a notice served under subsection (2) or a person
authorized by him may, for the purpose only of use in the inspection and audit
to which the notice relates, take copies of, or extracts from, such accounts,
records, documents and papers.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 40
Registrar may request explanation
SECT
40.(1) Where:
(a) an Aboriginal Council fails to carry out its obligations under section
38; or
(b) a report filed under subsection 38 (4) or a report furnished under
subsection 39 (1) draws attention to any irregularity in the financial affairs
of an Aboriginal Council;
the Registrar may, by notice served on the public officer of the Council,
request the Council to furnish to the Registrar, within the time specified in
the notice, an explanation, in writing, why the Council has failed to carry
out those obligations or why that irregularity has occurred, as the case may
be.
(2) Where the Registrar considers that an explanation furnished by an
Aboriginal Council under subsection (1) is satisfactory, he may, by notice
served on the public officer of the Council, require the Council to take such
action as is specified in the notice within the period specified in the
notice, being action designed to remedy the matter the subject of the
explanation by the Council.
(3) Subject to subsection (4A), where:
(a) an Aboriginal Council fails to furnish an explanation in accordance
with
subsection (1);
(b) the Registrar considers that an explanation furnished by an Aboriginal
Council under subsection (1) is not satisfactory; or
(c) an Aboriginal Council fails to comply with a requirement served under
subsection (2);
the Registrar:
(d) may, by notice published in the Gazette, declare the offices of the
councillors of the Council to be vacant; or
(e) may commence an investigation under section 68 into the conduct of the
affairs of the Council.
(4) Subject to subsection (4A), where an Aboriginal Council fails to carry
out its obligations under section 36 or 37, the Registrar may, by notice
published in the Gazette, declare the offices of the Councillors to be
vacant.
(4A) The Registrar shall not exercise his power under paragraph (3) (d) or
(e) or subsection (4) in respect of an Aboriginal Council unless he has, by
notice served on the Council, informed the Council that he proposes to
exercise that power and:
(a) he has ascertained from the Minister that there has been no appeal
under
subsection (4B) against his decision; or
(b) there has been such an appeal but the Minister has informed the
Registrar under subsection (4C) that he agrees that the power should be
exercised.
(4B) Where an Aboriginal Council is served with a notice under subsection
(4A), it may, within 21 days after the service of the notice, appeal to the
Minister, in writing, against the relevant decision of the Registrar.
(4C) Where, under subsection (4B), an Aboriginal Council appeals to the
Minister against a decision of the Registrar to exercise a power, the Minister
shall inquire into the matter and shall inform the Registrar and the
Aboriginal Council, in writing, whether he considers that the power should be
exercised.
(5) Where the offices of the councillors of an Aboriginal Council are
declared to be vacant under this section, the Registrar shall proceed to
conduct a fresh election in accordance with section 21.
(6) Section 22 does not apply in relation to an election conducted by virtue
of subsection (5).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 41
Liability of councillors
SECT
41. A councillor is not liable to contribute towards the payment of the
debts or liabilities of an Aboriginal Council.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 42
Staff
SECT
42. An Aboriginal Council may employ such staff as is necessary for the
performance of its functions.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART IV
PART IV-INCORPORATED ABORIGINAL ASSOCIATIONS
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 43
Application for incorporation
SECT
43.(1) The committee of an Aboriginal association may apply to the
Registrar, in writing signed by each member of the committee, for the
incorporation of the association under this Act.
(2) An application under subsection (1) shall state:
(a) the proposed name of the Association when incorporated, which shall
include the words 'Aboriginal Corporation' or the words 'Torres Strait
Islanders Corporation';
(b) the objects of the association;
(c) whether the members of the association are to be liable to contribute
towards the payment of the debts and liabilities of the association and, if
so, the extent of that liability;
(d) the place or places where the activities of the association are, or
are
to be, carried on; and
(e) the names and addresses of the persons who constitute the committee of
the association;
and shall be accompanied by a statement of the Rules by which, in the event of
the incorporation of the association, its affairs are to be regulated.
(3) Subject to this Act and the regulations, the Rules referred to in
subsection (2) shall make provision for and in relation to:
(a) the qualifications of members of the association;
(b) the creation of the executive offices of the association and the
procedure for filling those offices;
(c) the procedure for the settling of disputes between the association and
its members;
(d) the constitution of the Governing Committee of the association and the
powers of that Committee;
(e) the procedure for the conduct of meetings of the Governing Committee
of
the Association;
(f) the manner in which the funds of the association are to be managed;
(g) the method of altering the rules of the association, whether by making
new rules or by varying or rescinding rules in force; and
(h) the method of altering the objects of the association;
and may make provision, not contrary to law, for and in relation to any other
matter.
(4) The Rules of an association with respect to any matter may be based on
Aboriginal custom.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 44
Rights of members to share in pecuniary profits etc.
SECT
44. Where an Aboriginal Association is to be carried on wholly or partly for
the purpose of securing pecuniary profit to its members, the rules referred to
in subsection 43 (2) shall make provision with respect to the rights of
persons who are members from time to time to share in the pecuniary profits of
the association and the rights of persons who are members at the time of a
winding-up of the association to share in the distribution of any surplus
assets resulting from the winding-up, and those rules may make provision for
conferring rights on or in respect of a person upon his ceasing to be a member
by resignation or death.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 45
Registrar may issue certificate of incorporation
SECT
45.(1) Subject to this section, the Registrar, upon receipt of an
application under section 43 for the incorporation under this Act of an
Aboriginal association shall:
(a) if he is satisfied that it is proper for him so to do, issue to the
association a certificate of incorporation; or
(b) if he is not satisfied, refuse to issue a certificate of incorporation
and inform the association, in writing, of his refusal and of the reasons for
his refusal.
(2) Except as otherwise directed by the Minister, the registrar shall refuse
to issue a certificate of incorporation under this Act to an Aboriginal
association if the proposed name of the association is an unauthorized name.
(3) The Registrar shall refuse to issue a certificate of incorporation under
this Act to an Aboriginal association if he is satisfied that the Rules
referred to in subsection 43 (2) are unreasonable or inequitable.
(4) Where the Registrar refuses to issue a certificate of incorporation to
an Aboriginal association, he shall:
(a) notify the association, in writing, of his refusal;
(b) set out in the notification the reason for his refusal; and
(c) invite the committee of the association to make such changes in the
application for incorporation or in the Rules accompanying the application for
incorporation as will remove the grounds for refusal of the application and
advise the Registrar, within the time specified in the notification, of any
changes so made or, if the changes are not made, of reasons for the changes
not being made.
(5) Where the Registrar is notified, in accordance with subsection (4), of
changes made in an application for incorporation or in the Rules accompanying
an application for incorporation or of reasons for such changes not being
made, he shall reconsider the application under subsection (1).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 46
Incorporation of Aboriginal association
SECT
46.(1) Upon the issue to an Aboriginal association of a certificate of
incorporation under section 45, the association:
(a) in the case of an unincorporated association-becomes a body corporate
with perpetual succession;
(aa) in the case of an association incorporated otherwise than under this
Act-continues in existence by force only of this section as a body corporate
and has perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(e) may sue and be sued in its corporate name.
(2) The name of an Incorporated Aboriginal Association is the name set out
in its certificate of incorporation.
(3) The common seal of an Incorporated Aboriginal Association is of no
effect unless the name of the Association is inscribed on the seal in legible
characters.
(4) All courts, judges and persons acting judicially shall take judicial
notice of the seal of an Incorporated Aboriginal Association affixed to a
document and shall presume that it was duly affixed.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 47
Rules of Incorporated Aboriginal Association
SECT
47. The Rules accompanying the application for the incorporation of an
association under this Act or, where those Rules have been altered in
accordance with subsection 45 (4), those Rules as so altered shall, upon the
incorporation of the association under this Act, be the Rules of the
Incorporated Aboriginal Association, but may be altered in accordance with the
method of alteration laid down in those Rules.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 48
Liability of members of Incorporated Aboriginal Associations
SECT
48.(1) A person who is or has been a member of an Incorporated Aboriginal
Association in respect of which the application for incorporation stated that
the members of the Association were not to be liable to contribute towards the
payment of the debts and liabilities of the Association is not liable so to
contribute.
(2) A person who is or has been a member of an Incorporated Aboriginal
Association in respect of which the application for incorporation stated that
the members of the Association were to be liable, to the extent specified in
the application, to contribute towards the payment of the debts and
liabilities of the Association is liable so to contribute in respect of debts
and liabilities incurred after the incorporation of the Association and before
he ceases or ceased to be a member.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 49
Eligibility for membership of Incorporated Aboriginal Association
SECT
49.(1) A person who is not an Aboriginal, or the spouse of an Aboriginal,
is not entitled to become a member of an Incorporated Aboriginal Association.
(2) A person who, but for subsection (1), would be, or would have been, a
member of an Incorporated Aboriginal Association shall, for the purposes of
section 48, be treated as being, or as having been, such a member.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 49A
Provision in rules for conferral of specified rights of membership on persons
not entitled to become members
SECT
49A.(1) Where more than 75% of the members of an Aboriginal association
agree, the Rules referred to in subsection 43 (2) may provide for the
conferring of specified rights of membership of the association (other than
the right to vote at meetings of the association and the right to stand for
election to the Governing Committee of the association) on persons not
entitled to become members of the association.
(2) Where more than 75% of the members of an Incorporated Aboriginal
Association agree, the Rules of the Association may, subject to section 54 and
the requirements of the Rules relating to alteration of the Rules, be altered
to provide for the conferring of specified rights of membership of the
Association (other than the right to vote at meetings of the Association and
the right to stand for election to the Governing Committee of the Association)
on persons not entitled to become members of the Association.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 50
Vesting of property in Incorporated Aboriginal Associations
SECT
50.(1) Upon the incorporation of an Aboriginal association under this Act
any personal property (other than personal property consisting of an estate or
interest in land) held by a person, in trust or otherwise, for or on behalf of
the members of the Association vests, subject to any trust, covenant, contract
or liability affecting the property (other than a trust for the members) in
the Incorporated Aboriginal Association.
(2) Where a person holds an estate or interest in land in trust or otherwise
for or on behalf of the members of an Aboriginal association, that person
shall, upon the incorporation of the Association under this Act, take all
action required to vest, subject to any trust (other than a trust for the
members), or any covenant, contract or liability affecting the estate or
interest, the estate or interest in the Incorporated Aboriginal Association.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 51
Powers to borrow money and give securities
SECT
51. An Incorporated Aboriginal Association may, subject to this Act and to
the Rules of the Association:
(a) raise or borrow money upon such terms, and in such manner, as it
thinks
fit; and
(b) secure the repayment of money so raised or borrowed, or the payment of
a
debt or liability of the Association, by giving a mortgage, charge or other
security upon or over all or any of the property of the Association.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 52
Notification of alteration of objects
SECT
52.(1) The public officer of an Incorporated Aboriginal Association shall,
within 6 weeks after the making of an alteration of the objects of the
Association, file with the Registrar a copy of the alteration.
Penalty: $50.
(2) The Registrar shall consider an alteration filed under subsection (1)
and shall:
(a) if he is satisfied that it is proper for him so to do, approve the
alteration; or
(b) if he is not so satisfied, refuse to approve the alteration and inform
the Association, in writing, of his refusal and of the reasons for his
refusal.
(2A) Where the Registrar refuses to approve an alteration filed under
subsection (1), the relevant Association may request the Minister to approve
the alteration.
(2B) Where the Minister, having regard to the matters specified in
paragraphs (2) (a) and (b), is satisfied that the request should be complied
with, he shall approve the alteration.
(2C) Where the Minister is not satisfied that the request should be complied
with, he shall refuse to approve the alteration and shall notify the
Association, in writing accordingly.
(3) An alteration referred to in subsection (1) does not take effect unless
and until approved by the Registrar under subsection (2) or by the Minister
under subsection (2B).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 53
Change of name
SECT
53.(1) Where an Incorporated Aboriginal Association proposes to change its
name, the Governing Committee of the Association shall make application, in
writing, to the Registrar for his approval of the proposed new name.
(2) The Registrar shall approve a proposed new name submitted to him under
subsection (1) if:
(a) the name includes the words 'Aboriginal Corporation'or the words
'Torres
Strait Islanders Corporation'; and
(b) the name is not an unauthorized name.
(3) Where an Incorporated Aboriginal Association has changed its name to a
new name that has been approved by the Registrar under subsection (2), the
public officer of the Association shall serve on the Registrar a notice in
writing of the change.
Penalty: $50.
(4) Where the Registrar receives a notice under subsection (3), he shall
issue to the Incorporated Aboriginal Association a certificate of
incorporation in the new name of the Association and that certificate of
incorporation has effect, from the date of issue, as the certificate of
incorporation of the Association.
(5) A change of name by an Incorporated Aboriginal Association does not take
effect until the issue to the Association under subsection (4) of a
certificate of incorporation in the new name.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 54
Filing and approval of alterations of Rules
SECT
54.(1) Where an Incorporated Aboriginal Association alters its Rules, the
public officer of the Association shall, within 6 weeks after the making of
the alteration, file with the Registrar a notification of the alteration.
Penalty: $50.
(2) The Registrar shall consider an alteration filed under subsection (1)
and shall:
(a) if he is satisfied that the Rules of the Incorporated Aboriginal
Association as proposed to be altered are not inconsistent with this
Act-approve the alteration; or
(b) if he is not so satisfied-refuse to approve the alteration.
(3) The Registrar shall notify the public officer of the Incorporated
Aboriginal Association, in writing, of his approval, or his refusal of
approval, of an alteration filed by the public officer under subsection (1).
(4) An alteration referred to in subsection (1) does not take effect unless
and until approved by the Registrar under subsection (2).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 55
Alteration of objects etc. does not affect existing rights and obligations
SECT
55. An alteration of the objects of an Incorporated Aboriginal Association
or the issue of a certificate of incorporation to an Association in a new
name, does not affect any right, liability or obligation of the Association or
of any person, or any legal proceedings, existing or pending immediately
before the alteration took effect or the certificate was issued, as the case
may be.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 56
Appointment of public officer etc.
SECT
56.(1) The Governing Committee of an Incorporated Aboriginal Association
shall, within 3 weeks after its incorporation under this Act, appoint a person
to be the public officer of the Association and determine an official address
for the person from time to time holding the office and, if that office at any
time becomes vacant, shall, within 3 weeks after it becomes vacant, appoint a
person to fill that vacancy.
(2) The public officer of an Incorporated Aboriginal Association holds
office during the pleasure of the Governing Committee of the Association.
(3) The public officer of an Incorporated Aboriginal Association may resign
his office by writing signed by him delivered to the Chairman of the Governing
Committee of the Association but the resignation does not have effect until it
is accepted by the Chairman.
(4) The Governing Committee of an Incorporated Aboriginal Association shall
terminate the appointment of the public officer of the Association if he
becomes bankrupt, applies to take the benefit of a law for the relief of
bankrupt or insolvent debtors or compounds with his creditors.
(5) Where the Registrar considers that the place of the official address of
the public officer of an Incorporated Aboriginal Association is not an
appropriate place for the performance of the duties of the public officer
under this Act, the Registrar may serve on the public officer a notice
directing the Governing Committee of the Association to determine another
official address and to notify him of the address so determined, and the
Governing Committee shall obey that direction.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 57
Notice of appointment and change of public officers
SECT
57.(1) The Governing Committee of an Incorporated Aboriginal Association
shall, within 3 weeks after the appointment of a public officer, serve on the
Registrar a notice in writing setting out the full name and official address
of the public officer.
(2) Where the Governing Committee of an Incorporated Aboriginal Association
changes the official address of its public officer, it shall, within 3 weeks
after the change, serve on the Registrar a notice in writing of the change.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 58
Public officer to keep register of members
SECT
58.(1) The public officer of an Incorporated Aboriginal Association shall
keep, at his official address, a register, in a form satisfactory to the
Registrar, showing:
(a) the name and address of every member of the Association;
(b) the date upon which each member joined the Association; and
(c) where a member of the Association ceased to be such a member-the date
upon which he so ceased.
(2) The public officer of an Incorporated Aboriginal Association shall take
such action as is required to ensure that a register kept by him under
subsection (1) is open for inspection, at all reasonable times, by members of
the public.
Penalty: $50.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 59
Records to be kept and balance sheets and income and expenditure statements
to
be prepared
SECT
59.(1) The Governing Committee of an Incorporated Aboriginal Association
shall cause to be kept proper accounts and records of the transactions and
affairs of the Association and shall do all things necessary to ensure that
all payments out of the moneys of the Association are correctly made and
properly authorized and that adequate control is maintained over the assets
of, or in the custody of, the Association and over the incurring of
liabilities by the Association.
(2) The Governing Committee of an Incorporated Aboriginal Association shall,
as soon as practicable after each 30 June, cause to be prepared a balance
sheet setting out the assets and liabilities of the Association as at that 30
June and an income and expenditure statement giving a true and fair view of
the income and expenditure of the Association for the financial year ending on
that 30 June.
(3) The Governing Committee of an Incorporated Aboriginal Association shall,
as soon as practicable after a balance sheet and income and expenditure
statement has been prepared under subsection (2), cause a person having the
prescribed qualifications:
(a) to examine whether the balance sheet and income and expenditure
statement is based on proper accounts and records and is in agreement with
those accounts and records; and
(b) to furnish to the Governing Committee a report of the results of that
examination drawing attention to any irregularity in the financial affairs of
the Association disclosed by that examination.
(4) The public officer of an Incorporated Aboriginal Association shall,
within 6 weeks after the furnishing to the Governing Committee of that
Association of a report under subsection (3) with respect to a balance sheet
and income and expenditure statement prepared under subsection (2), file with
the Registrar a copy of that balance sheet and income and expenditure
statement and a copy of that report.
Penalty for any contravention of this subsection: $50.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 59A
Exemption from section 59 in certain circumstances
SECT
59A.(1) Where the Registrar is satisfied that it would be impracticable for
an Incorporated Aboriginal Association to comply with the requirements of
section 59, or that the application of those requirements to an Incorporated
Aboriginal Association would be unduly onerous, the Registrar may, by writing,
exempt the Association, wholly or in part, from those requirements.
(2) Where the Registrar has, in an instrument issued under subsection (1),
exempted an Incorporated Aboriginal Association, in whole or in part, from the
requirements of section 59, the Registrar may, in the instrument, require that
Association to comply with such requirements as to the keeping of accounts and
records, and the preparation and filing of reports and statements prepared
from those accounts and records, as the Registrar thinks appropriate in view
of the exemption that has been granted, and that Association shall comply with
the requirement.
Penalty: $50.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 60
Audit of records and balance sheets
SECT
60.(1) The Registrar may, at any time, cause a person having the prescribed
qualifications to inspect and audit the accounts and records caused to be kept
by the Governing Committee of an Incorporated Aboriginal Association in
pursuance of subsection 59 (1), or pursuant to a requirement of the Registrar
under subsection 59A (2), and to furnish to him a report of the results of
that inspection and audit drawing attention to any irregularity in the
financial affairs of the Association disclosed by that inspection and audit.
(2) The Registrar shall, before an inspection and audit under subsection (1)
is commenced, by notice in writing served on the public officer of the
Incorporated Aboriginal Association concerned, inform the Governing Committee
of the Association that such an inspection and audit will be carried out and
name the person whom he has engaged for the purpose.
(3) Where a notice is served on the public officer of an Incorporated
Aboriginal Association under subsection (2), the Governing Committee of the
Association shall take such action as is necessary to ensure that the person
named in the notice or a person authorized by that person has, for the
purposes of the inspection and audit referred to in the notice, full and free
access to all accounts, records, documents and papers of the Association
relevant directly or indirectly to the payment of money by the Association or
to the acquisition, receipt, custody or disposal of assets by the
Association.
(4) A person named in a notice served under subsection (2) or a person
authorized by him may, for the purpose only of use in the inspection and audit
to which the notice relates, take copies of, or extracts from, such accounts,
records, documents and papers.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 61
Registrar may request explanation
SECT
61.(1) Where:
(a) the Governing Committee of an Incorporated Aboriginal Association
fails
to carry out its obligations under section 59, or under a requirement of the
Registrar under subsection 59A (2); or
(b) a report filed under subsection 59 (4), or filed in compliance with a
requirement of the Registrar under subsection 59A (2), or a report furnished
under subsection 60 (1) draws attention to any irregularity in the financial
affairs of an Incorporated Aboriginal Association;
the Registrar may, by notice in writing served on the public officer of the
Association, request the Governing Committee of the Association to furnish to
the Registrar, within the time specified in the notice, an explanation, in
writing, why the Governing Committee has failed to carry out those obligations
or why that irregularity has occurred, as the case may be.
(2) Where the Registrar considers that an explanation furnished by the
Governing Committee of an Incorporated Aboriginal Association under subsection
(1) is satisfactory, he may, by notice served on the public officer of the
Association, require the Governing Committee to take such action as is
specified in the notice within the period specified in the notice, being
action designed to remedy the matter the subject of the explanation by the
Governing Committee.
(3) Subject to subsection (5), where:
(a) the Governing Committee of an Incorporated Aboriginal Association
fails
to furnish an explanation in accordance with subsection (1);
(b) the Registrar considers that an explanation furnished by the Governing
Committee of an Incorporated Aboriginal Association under subsection (1) is
not satisfactory; or
(c) the Governing Committee of an Incorporated Aboriginal Association
fails
to comply with a requirement served under subsection (2);
the Registrar:
(d) may petition the Court that the Association be wound up; or
(e) may commence an investigation under section 68 into the conduct of the
affairs of the Association.
(4) Subject to subsection (5), where the Governing Committee of an
Incorporated Aboriginal Association fails to carry out its obligations under
section 56 or 57, the Registrar may petition the Court that the Association be
wound up.
(5) The Registrar shall not exercise his power under paragraph (3) (d) or
(e) or subsection (4) in respect of an Incorporated Aboriginal Association
unless he has, by notice served on the association, informed the association
that he proposes to exercise that power and:
(a) he has ascertained from the Minister that there has been no appeal
under
subsection (6) against his decision; or
(b) there has been such an appeal but the Minister has informed the
Registrar under subsection (7) that he agrees that the power should be
exercised.
(6) Where an Incorporated Aboriginal Association is served with a notice
under subsection (5), it may, within 21 days after the service of the notice,
appeal to the Minister, in writing, against the relevant decision of the
Registrar.
(7) Where, under subsection (6), an Incorporated Aboriginal Association
appeals to the Minister against a decision of the Registrar to exercise a
power, the Minister shall inquire into the matter and shall inform the
Registrar and the Association, in writing, whether he considers that the power
should be exercised.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 62
Application of provisions of Companies Act relating to compositions with
creditors
SECT
62. Subject to this Act, the provisions of the Companies Act 1981 that
relate to compromises or arrangements between companies and their creditors
apply, so far as they are capable of application and subject to such
modifications, adaptations and exceptions (if any) as are prescribed, to and
in relation to Incorporated Aboriginal Associations and, in the application of
those provisions:
(a) a reference to a company shall be read as a reference to an
Incorporated
Aboriginal Association;
(aa) a reference to the Commission shall be read as a reference to the
Registrar of Aboriginal Corporations;
(b) a reference to the directors of a company shall be read as a reference
to the members of the Governing Committee of an Incorporated Aboriginal
Association; and
(c) a reference to the Court shall be read as a reference to the Federal
Court of Australia.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 63
Winding up by Court
SECT
63.(1) Subject to this section, an Incorporated Aboriginal Association may
be wound up under an order of the Court on the petition of:
(a) the Association;
(b) any creditor, including a contingent or prospective creditor, of the
Association;
(c) a member of the Association;
(d) the judicial manager of the Association; or
(e) the Registrar;
or of any 2 or more of those parties.
(2) A petition under subsection (1) shall specify one or more of the
following grounds:
(a) the Incorporated Aboriginal Association has, in accordance with its
rules, resolved that it be wound up by the Court;
(b) the business of the Association was not commenced within 1 year after
its incorporation or has been suspended for a continuous period of 1 year;
(c) there are fewer than 5 members of the Association;
(d) the Association is unable to pay its debts;
(e) the members of the Committee of the Association have acted in the
affairs of the Association in their own interests rather than in the interests
of the members as a whole or in any other manner whatsoever that appears to be
unfair or unjust to other members;
(f) a ground set out in subsection 61 (3) or (4);
(g) by reason of the complexity or magnitude of the activities of the
Association, it is inappropriate that it continue to be incorporated under
this Act;
(h) it is just and equitable that the Association be wound up.
(3) For the purpose of the consideration by the Court of a petition under
subsection (1) on the ground set out in paragraph (2) (d), an Incorporated
Aboriginal Association shall be deemed to be unable to pay its debts if:
(a) a creditor, by assignment or otherwise, to whom the Association is
indebted in a sum exceeding $500:
(i) has, by service of a demand upon the public officer, required
the
Association to pay that sum; and
(ii) has, within 3 days of that service, served a copy of that
demand
upon the Registrar for his information;
and the Association has, for a period of 28 days after the service referred to
in subparagraph (i), neglected to pay that sum or to secure or compound for it
to the reasonable satisfaction of the creditor;
(b) execution or other process issued on a judgment, decree or order of
any
court in favour of a creditor of the Association is returned unsatisfied in
whole or in part; or
(c) it is proved to the satisfaction of the Court, which shall take into
account the contingent and prospective liabilities of the Association, that
the Association is unable to pay its debts.
(4) A member of an Incorporated Aboriginal Association is not entitled to
present a petition under subsection (1) on a ground specified in paragraph (2)
(a), (b), (d), (g) or (h) unless:
(a) there are fewer than 5 members of the Association; or
(b) the member has been a member of the Association since the date of its
incorporation or has been a member for at least 6 months prior to the
presentation of the petition.
(5) No person other than the Registrar is entitled to present a petition
under subsection (1) on a ground specified in paragraph (2) (f).
(6) The Court shall not hear a petition under subsection (1) if it is
presented by a contingent or prospective creditor until such security for
costs has been given as the Court thinks reasonable and a prima facie case for
winding up has been established to the satisfaction of the Court.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 64
Voluntary winding up
SECT
64.(1) An Incorporated Aboriginal Association may be wound up voluntarily if
the Association so resolves by special resolution.
(2) The public officer of an Incorporated Aboriginal Association shall,
within 3 weeks after the passing of a resolution for voluntary winding up,
lodge with the Registrar a notice in the prescribed form of the passing of the
resolution and a copy of the resolution.
Penalty: $50.
(3) The Registrar shall, within 3 weeks after the lodging of a notice under
subsection (2), publish in the Gazette a notice of the passing of the
resolution to which the notice relates.
(4) For the purposes of this section, a resolution is a special resolution
if it is passed by a majority of not less than three-fourths of such members
as being entitled so to do vote in person, or, where proxies are allowed, by
proxy, at a general meeting of which not less than 21 days' notice specifying
the intention to propose the resolution as a special resolution has been duly
given.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 65
Distribution of surplus assets in winding up
SECT
65.(1) Subject to this section, where, upon the winding up of an
Incorporated Aboriginal Association, there remain any surplus assets and:
(a) the rules of the Association make provision for the distribution of
the
surplus assets of the Association in the event of the Association's being
wound up; or
(b) where there are no such rules-a resolution relating to the
distribution
of the surplus assets of the Association has been passed by at least
two-thirds of the members of the Association;
the Court or the liquidator shall distribute those assets in accordance with
those rules or that resolution, as the case may be.
(2) Where, in a winding up by the Court:
(a) a Judge of the Court considers that a distribution of the surplus
assets
of the Association in accordance with the rules of the Association or with a
resolution under paragraph (1) (b) would not be just; or
(b) no such rules exist and such a resolution has not been passed;
the Judge shall make such orders for the distribution of those assets as,
having regard to the objects of the Association, he considers just.
(3) Where, in a voluntary winding up:
(a) the liquidator considers that a distribution of the surplus assets of
the Association in accordance with the rules of the Association or with a
resolution relating to the distribution of those surplus assets passed by a
majority of at least two-thirds of the members of the Association would not be
just; or
(b) no such rules exist and such a resolution has not been passed;
the liquidator shall apply to a Judge of the Court to exercise all or any of
the powers that the Judge might exercise under subsection (2) if the
Association were being wound up by the Court.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 67
Application of provisions of Companies Act to winding up of Incorporated
Aboriginal Associations
SECT
67. Subject to this Act, the provisions of the Companies Act 1981 that
relate to the winding up of companies incorporated under that Act apply, so
far as they are capable of application and subject to such modifications,
adaptations and exceptions (if any) as are prescribed, to and in relation to
the winding up of Incorporated Aboriginal Associations and, in the application
of those provisions:
(a) a reference to a company shall be read as a reference to an
Incorporated
Aboriginal Association;
(b) a reference to the directors of a company shall be read as a reference
to the members of the Governing Committee of an Incorporated Aboriginal
Association;
(c) a reference to the secretary of a company shall be read as a reference
to the public officer of an Incorporated Aboriginal Association;
(d) a reference to the registered office of a company shall be read as a
reference to the official address of the public officer of an Incorporated
Aboriginal Association;
(e) a reference to the Court shall be read as a reference to the Federal
Court of Australia; and
(f) a reference to the Commission shall be read as a reference to the
Registrar of Aboriginal Corporations.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART V
PART V-INVESTIGATION AND JUDICIAL MANAGEMENT OF ABORIGINAL CORPORATIONS
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 68
Investigation by Registrar
SECT
68.(1) Where the Registrar:
(a) is empowered, under section 40 or 61, to commence an investigation
under
this section into the conduct of the affairs of an Aboriginal corporation; or
(b) has in his possession any information that he considers calls for an
investigation under this section into the conduct of the affairs of an
Aboriginal corporation;
he may serve on the public officer of the corporation a notice in writing
calling upon the corporation to show cause, within such period, not less than
6 weeks, as is specified in the notice, why he should not, on the ground
specified in the notice, investigate the conduct of the affairs of the
corporation.
(2) If an Aboriginal corporation fails, within the period specified in a
notice served under subsection (1), to show cause to the satisfaction of the
Registrar, the Registrar may make the investigation referred to in the
notice.
(3) For the purposes of an investigation under subsection (2), the Registrar
may, by notice in writing given to a person whom the Registrar believes to
have some knowledge of the affairs of the Aboriginal corporation, require that
person to attend before him at the time and place specified in the notice and
there to answer questions relating to the affairs of the corporation.
(4) A person is not excused from answering a question when required to do so
under subsection (3) on the ground that the answer to the question might tend
to incriminate him or make him liable to a penalty, but his answer to any such
question is not admissible in evidence against him in any proceedings, other
than proceedings for an offence against subsection 69 (1) or (2).
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 69
Offences
SECT
69.(1) A person shall not, without reasonable excuse, refuse or fail:
(a) to attend before the Registrar; or
(b) to answer a question;
when so required in pursuance of subsection 68 (3).
Penalty: $50.
(2) A person shall not, when appearing before the Registrar for examination
in pursuance of subsection 68 (3), make a statement that he knows to be false
or misleading in a material particular.
Penalty for any contravention of this subsection: $1,500.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 70
Entry on premises
SECT
70.(1) Where the Registrar believes on reasonable grounds that it is
necessary for the purposes of his investigation of the affairs of an
Aboriginal corporation to enter land or premises occupied by the corporation,
he may, at all reasonable times, enter the land or premises and may:
(a) examine books on the land or premises that relate to the affairs of
the
corporation or that he believes, on reasonable grounds, relate to those
affairs;
(b) take possession of any of those books for such period as he thinks
necessary for the purposes of the investigation; and
(c) make copies of, or take extracts from, any of those books.
(2) The Registrar is not entitled to refuse to permit a person to inspect
books referred to in subsection (1) that are in the possession of the
Registrar under that subsection if the person would be entitled to inspect
those books if the Registrar had not taken possession of them.
(3) A person shall not obstruct or hinder the Registrar in the exercise of
his powers under this section.
Penalty: $1,500.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 71
Application for judicial management of Aboriginal corporation
SECT
71.(1) Where the Registrar, having regard to the results of an investigation
made by him under section 68 into the conduct of the affairs of an Aboriginal
corporation, is of the opinion that it is necessary or proper to do so, he may
apply to the Court for an order that the corporation be placed under judicial
management.
(2) An application to the Court under subsection (1) shall ask that, if the
application is granted, the Registrar or a person included in a panel of 3
persons nominated by the Registrar for the purpose shall be appointed as the
judicial manager of the Aboriginal corporation.
(3) The Aboriginal corporation is entitled to be heard on any application
made to the Court under this section.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 72
Judicial management
SECT
72.(1) An order for the judicial management of an Aboriginal corporation on
an application under section 71 is subject to the provisions of this section
and of sections 73, 74, 75, 76 and 77.
(2) The Court shall, in an order for the judicial management of an
Aboriginal corporation, appoint as judicial manager the Registrar or one of
the panel nominated by the Registrar in the application for the order.
(3) The Court may, at any time, cancel the appointment of a person as
judicial manager and appoint in his stead any other person.
(4) A judicial manager shall receive such remuneration (if any) as the Court
directs.
(5) The Court may direct how and by whom the remuneration, charges and
expenses of the judicial manager shall be borne and may, if it thinks fit,
charge that remuneration and those charges and expenses on the property of the
Aboriginal corporation in such order of priority in relation to any existing
charges on that property as it thinks fit.
(6) The conduct of the affairs of the Aboriginal corporation shall, on and
after a date specified in the order of the Court, vest in the judicial manager
appointed by the Court and, on and after that date, no person not so appointed
shall have the conduct of those affairs while the corporation continues to be
under judicial management.
(7) The judicial manager shall act as the public officer of the Aboriginal
corporation and the person who was the public officer of the corporation
immediately before the appointment of the judicial manager ceases to be the
public officer of the corporation.
(8) The Court shall issue such directions to the judicial manager as to his
powers and duties as it deems desirable in the circumstances of the case,
including directions as to the making of reports to the Court from time to
time on the conduct of the affairs of the Aboriginal corporation.
(9) The judicial manager shall act under the control of the Court and may
apply to the Court at any time for instructions as to the manner in which he
shall conduct the judicial management or in relation to any matter arising in
the course of the judicial management.
(10) The judicial manager shall give to the Minister such information as the
Minister requires from time to time and shall report to the Minister whenever
he intends to apply to the Court for instructions and shall, at the same time,
furnish to the Minister particulars of the application.
(11) The Minister is entitled to be heard on any application under
subsection (9) and may himself make application to the Court with reference to
the conduct of the judicial management.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 73
Order declaring vacant offices of councillors etc.
SECT
73. At any time after the making of an order on an application under section
71 for the judicial management of an Aboriginal corporation, the Court may
declare vacant:
(a) where the corporation is an Aboriginal Council-all offices of the
councillors constituting the Council; or
(b) where the corporation is an Incorporated Aboriginal Association-all
offices of the members of the Governing Committee of the Association.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 74
Indemnity
SECT
74. The judicial manager is not subject to any action, claim or demand by,
or liable to, any person in respect of anything done, or omitted to be done,
in good faith in the exercise, or in connexion with the exercise, of the
powers conferred on the judicial manager by this Act.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 75
Cancellation of certain contracts
SECT
75. The Court may, either of its own motion or on the application of the
judicial manager, at any time while an order for judicial management is in
force with respect to an Aboriginal corporation, after hearing all persons
who, in the opinion of the Court, are entitled to be heard, cancel or vary
(either unconditionally or subject to such conditions as the Court thinks
just) any contract or agreement between the corporation and any other person,
being a contract or agreement entered into before the management of the
corporation was vested in the judicial manager, that the Court is satisfied
should be cancelled or varied.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 76
Order for election of councillors etc.
SECT
76. Before cancelling, in accordance with section 77, an order for judicial
management with respect to an Aboriginal corporation in respect of which a
declaration has been made under section 73 declaring vacant:
(a) where the corporation is an Aboriginal Council-all offices of the
councillors constituting the Council; or
(b) where the corporation is an Aboriginal Association-all offices of the
members of the Governing Committee of the Association;
the Court shall direct the Registrar to conduct an election, as specified in
the direction, to fill the vacancies.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 77
Cancellation of judicial management order
SECT
77.(1) If, at any time, on the application of the judicial manager or of any
other person interested, it appears to the Court that the purpose of the order
for the judicial management of an Aboriginal Corporation has been fulfilled or
that for any reason it is undesirable that the order should remain in force,
the Court may cancel the order and, thereupon, the judicial manager shall be
divested of the conduct of the affairs of the corporation, which shall again
vest in:
(a) where the corporation is an Aboriginal Council-the Council; or
(b) where the corporation is an Aboriginal Association-the Governing
Committee of the Association.
(2) Section 36 applies in relation to an Aboriginal Corporation (being an
Aboriginal Council) referred to in subsection (1) and section 56 applies in
relation to an Aboriginal Corporation (being an Incorporated Aboriginal
Association) referred to in that subsection as if the office of public officer
of the Corporation had become vacant on the date of cancellation of the order
for judicial management of the Corporation.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - PART VI
PART VI-MISCELLANEOUS
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 79
Extension of time
SECT
79. Where, under this Act or the regulations, an act or thing is required to
be performed or done within a specified time, the Minister or the Registrar
may, in special circumstances, if he thinks fit, extend the time for the
performance or doing of that act or thing.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 80
Service on Aboriginal corporation etc.
SECT
80.(1) A notice, demand, summons, writ or other document or process may be
served on an Aboriginal corporation by serving it personally on the public
officer of the corporation or by sending it by post to him at his official
address.
(2) An Aboriginal corporation may give notice or make a demand by writing
signed by the public officer of the corporation.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 81
Service on Registrar etc.
SECT
81. A document required or permitted by this Act to be served on, or filed
with, the Registrar may be served on, or filed with, the Registrar personally
or by post.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 81A
Foreign companies for purposes of Companies Act not to include Aboriginal
corporations
SECT
81A. Notwithstanding anything in the Companies Act 1981, an Aboriginal
corporation shall not be taken to be a foreign company for the purposes of
that Act.
ABORIGINAL COUNCILS AND ASSOCIATIONS ACT 1976 - SECT 82
Regulations
SECT
82. The Governor-General may make regulations, not inconsistent with this
Act, prescribing all matters required or permitted by this Act to be
prescribed, or necessary or convenient to be prescribed for carrying out or
giving effect to this Act, and, in particular:
(a) prescribing the manner of conduct of elections of councillors for
Aboriginal Councils;
(b) providing for or in relation to the striking off the Register of
Incorporated Aboriginal Associations of the name of, and for and in relation
to the dissolution of, an Association that is not carrying on its activities
or is not in operation;
(c) providing for the issue of certified copies of certificates of
incorporation;
(d) providing for the inspection of documents kept by, or filed with, the
Registrar under this Act or the regulations;
(e) prescribing the form in which any application, notice, declaration or
certificate shall be made, given, published, issued or filed under this Act or
the regulations;
(f) prescribing matters that are to be provided for in the Rules of
Aboriginal Councils or restrictions on the making of such Rules;
(g) making provision, to be applicable to all or any Aboriginal Councils,
with respect to any matter that could be dealt with in the Rules of Aboriginal
Councils;
(h) prescribing matters that are to be provided for in the Rules of
Incorporated Aboriginal Associations;
(i) prescribing the fees to be paid on the making, giving, publishing,
issuing, filing or inspecting of any document under this Act or the
regulations; and
(j) prescribing penalties, not exceeding a fine of $20, for offences
against
the regulations.